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Honnold  on  Workmen*s  Compensation 

with 
Supplement 

This  Edition  contains: 

(A)  The  original  treatise  on  the  American  and  English  Work- 
men's Compensation  Laws;  the  full  text  of  the  Acts  of  the  various 
States;  a  complete  Index,  and  a  Table  of  Cases  Cited. 

(B)  The  1918  Supplement,  bringing  all  of  the  above  down  to 
date. 


A  TREATISE 


ON  THE 


AMERICAN  AND  ENGLISH 
WORKMEN'S  COMPENSATION  LAWS 


AS    INTERPRETED    BY    THE    COURTS    AND    TRIBUNALS 
VESTED  WITH  THE    POWER    OF  ADMINIS- 
TERING AND  ENFORCING  SAME 


WITH  SUPPLEMENT 


By  ARTHUR  B.  HONNOLD 

OF  THE  MINNESOTA  BAR 
AUTHOR   OF  A  TREATISE  ON   OKLAHOMA  JUSTICE  PRACTICE 


IN  TWO  VOLUMES 

VOLUME   I 


KANSAS  CITY.  MO. 

VERNON  LAW  BOOK  COMPANY 

1918 


COPYRIGUT,  rjl7 
BY 

ARTHUR  B.  HONNOLD 


COPYKIGIIT,   1918 
BY 

ARTHUR  B.  HONNOLD 

(1  HON.COMP.AND  SUPP.) 

L 

19/g: 


PREFACE 


While  compensation  legislation  is  comparatively  new,  it  has  developed 
rapidly,  as  appears  from  the  fact  that  Workmen's  Compensation  Acts 
have  been  adopted  by  the  Federal  Government,  thirty-two  states,  three 
territories,  and  many  foreign  countries.  This  legislation  has  received 
a  sufficiently  thorough  test  to  demonstrate  its  merit  as  a  means  of 
alleviating  certain  conditions  which  have  arisen  as  a  result  of  indus- 
trial progress,  and  to  assure  its  permanency.  The  underlying  princi- 
ples have  become  sufficiently  fixed  to  make  of  value  a  text  book  based 
on  the  opinions  of  the  courts  and  various  commissions  and  officers 
vested  with  the  power  and  duty  of  enforcing  these  Acts,  particularly 
if  supplemented  by  an  index  furnishing  a  ready  means  of  reference 
and  a  means  of  comparing  the  text  of  the  legislation  on  which  the 
opinions  are  based  with  the  text  of  that  Act  in  which  the  investigator 
is  primarily  interested.  In  this  view  this  book  has  been  prepared.  It 
contains  references  to  all  material  EngHsh  and  American  cases  and 
opinions,  together  with  the  text  of  each  Act  for  purpose  of  comparison 
as  above  mentioned,  and  is  submitted  in  the  hope  that  it  may  duly 
facilitate  investigations  into  this  interesting  and  valuable  class  of  legis- 
lation. 

Occasion  is  hereby  taken  to  acknowledge  tlie  uniform  courtesy  of 
the  various  commissions,  boards,  secretaries,  and  attorneys  from  whom 
much  valuable  material  and  information  has  been  secured. 

A.  B.  H. 

St.  Paul,  Minn. 

(iii)* 


TABLE   OF  CONTENTS 

OF  VOLUMES   I  AND  II 


VOLUME  I 


TABLE  OF  ABBREVIATIONS 

(Page  xix) 

CHAPTER  I 

WORKMEN'S  COMPENSATION  ACTS  IN  GENERAIv 

Section 

1-5.  Article  I. — History,  purpose  and  scope. 

6-11.  Article  II. — Construction  and  operation. 

12-19.  Article  III.— Validity. 

ARTICLE  I 

Section  HISTORY,  PURPOSE  AND  SCOPE 

1.  History. 

2.  Theory,  purpose,  and  scope. 

3.  Report  of  Wainwright  Commission. 

4.  Scope  of  legislation  and  change  effected. 

5.  Insurance  features. 

ARTICLE  II 

CONSTRUCTION  AND  OPERATION 
Section 

6.  Construction. 

7.  Retroactive  operation. 

8.  Territorial  operation. 

9.  Admiralty  jurisdiction. 

10.  Interstate  commerce. 

11.  Administration. 

1  HON.COMP.  (v) 


Vi  TABLE  OF  CONTENTS 


ARTICLE  III 

Section  VALIDITY 

12.  Police  power. 

13.  Validity  as  against  particular  objections. 

14.  Objections  raised  under  constitutional  provisions. 

15.  New  York — Ives  Case. 

16.  Kentucky. 

17.  Classification. 

18.  Abolition  of  defenses. 

19.  Right  to  question  validity. 


CHAPTER  II 

ELECTIVE  AND  COMPULSORY  COMPENSATION 

Section 

What  Acts  are  elective  and  what  compulsory. 

Validity  of  Acts  as  affected  by  their  elective  or  compulsory  nature. 

Contractual  nature  of  elective  compensation. 

Presumption,  notice  and  effect  of  election. 

Pleading,  and  proof  of  election. 

Abolition  of  defenses  in  common-law  actions. 


20 
21 
22 
23 
24 
25 


CHAPTER  III 

PERSONS.  AND   FUNDS   LIABLE   FOR   COMPENSATION 


Section 


26-31.  Article  I.— Employers,  principals,  and  contractors. 

32-^0.  Article  II. — Insurers  and  funds. 

41-4S.  Article  III.— Third  persons  (indemnity  and  subrogation). 

ARTICLE  I 

Section  EMPLOYERS,  PRINCIPALS,  AND  CONTRACTORS 

26.  Primary  liability— Who  liable  as  employers. 

27.  W^hich  of  two  employers  liable. 

28.  Municipal  corporations. 

29.  Contemporaneous  employment  by  different  employers. 

30.  Principals  and  contractors. 

31.  Principal  and  agent. 


TABLE   OF   CONTENTS 


Vll 


ARTICLE  II 

INSURERS  AND  FUNDS 
Section  * 

32.  Distinctive  insurance  features  of  Compensation  Acts. 

33.  Option  of  state  insurance,  private  insurance,  or  self-insurance. 

34.  Riglits  and  liabilities  of  insurance  companies. 

35.  Substitution  of  parties,  subrogation  and  reimbursement. 

36.  Premiums. 

37.  State  insurance. 

38.  Excessive  contributions  and  credits. 

39.  Public  work. 

40.  Pension  roll  and  resei-ve  fund. 


ARTICLE  III 

THIRD  PERSONS.  (INDEMNITY  AND  SUBROGATION) 

Section 

41.  In  general. 

42.  California — Exercise  of  option. 

43.  Massachusetts. 

44.  Minnesota. 

45.  New  Jersey. 

46.  New  York. 

47.  Washington. 

48.  Wisconsin. 


CHAPTER  IV 

PERSONS  ENTITLED  TO  COMPENSATION 


Section 

49-69.     Article  I.- 

70-84.     Article  II. 


-Employes. 
—Dependents. 


Section 
49. 
50. 
51. 
52. 


ARTICLE  I 

employ:6s 

Persons  entitled  to  compensation  as  employes. 
New  York. 
Contract  of  service. 
State  employes. 


Vlll 


TABLE   OF   CONTENTS 


Section 

53.  Municipal  employes. 

54.  California. 

55.  Federal  employes. 

56.  Previous  health  of  employe. 

57.  Minor  employes. 
oS.  Employes  excepted. 

59.  Farm  laborers. 

60.  Domestic  and  household  servants. 

61.  Clerks. 

62.  Casual  employes. 

63.  Connecticut. 

64.  California. 

65.  Iowa  and  Minnesota. 

66.  Independent  contractor. 

67.  Federal  Act. 

68.  Employg  of  independent  contractor. 

69.  Officers. 


ARTICLE  II 

DEPENDENTS 

Section 

70.  Who  are  dependents  and  what  constitutes  dependency. 

71.  Partial  dependency. 

72.  Total  dependency. 

73.  Alien  dependents. 

74.  What  children  may  be  dependents. 

75.  Illegal  and  divorced  wives — Marriage. 

76.  Nonsupport  and  desertion. 

77.  Dependents  under  federal  Act. 

78.  Claim  of  dependent. 

79.  Payment  to  representatives — Survival  of  claim. 

80.  Determination  of  question  of  dependency. 

81.  Presumption  of  dependency — Husband  and  wife. 

82.  Parent  and  child. 

83.  California. 

84.  Proof  of  dependency. 


TABLE    OF    CONTENTS 


IX 


CHAPTER  V 

CIRCUMSTANCES  UNDER  WHICH  COMPENSATION 
BECOMES  DUE 

Section 

S5-100.  Article  I. — Injury  and  accident. 

85-91.  Division  I. — Accident. 

92-96.  Division    IT. — Personal    injury. 

97-98.  Division  III. — Di.eieases. 

99-100.  Division  lY.— Proof. 

101-126.  Article  II. — Arising  out  of  and  in  course  of  employment. 

101-104.  Division  I. — In  general. 

10.5-114.  Division  II. — Arisinr;  in  the  course  of  employment. 

115-125.  Division  III. — Arising  out  of  employment. 

126.  Division  IV.— Proof. 

127-137.  Article  III.— Cause  and  result. 

138-139.  Article  IV, — Occupational  diseases. 


ARTICLE  I 
INJURY  AND  ACCIDENT 


Division  I. — Accident 
Section 

85.  Necessity,  definition,  and  characteristics. 

86.  Unexpected  untovrard  event — Extraneous  or  not, 

87.  Intentional  act  of  another. 

88.  Industrial  accidents. 

89.  Voluntary  act  in  emergency. 

90.  Fortuitous  event. 

91.  Question  of  Islw  and  fact. 


Division  II. — Personal  Injubt 

92.  Definition. 

93.  Federal  Act. 

94.  Physical   violence   or    not. 

95.  Nervous  shock. 

96.  Hernia. 

Division  III. — Diseases 

97.  Diseases   compensable   as   injuries. 

98.  Previously   existing  diseases. 


TABLE  OF   CONTENTS 


Division  IV. — Proof 

Section 

99.     Proof   of   accident. 

100.  Proof  of  iujury. 

ARTICLE  II 

ARISING  OUT  OF  AND  IN  COURSE  OF  EMPLOYMENT 

Division  I. — In  General 

Section 

101.  "In  course  of"  and  "out  of" — Necessity  and  distinction. 

102.  Employments. 

103.  Hazardous  employments. 

104.  Federal  Act. 

Division  II. — Arising  in  the  Course  of  Employment 

105.  In  general. 

106.  Term  of  employment. 

107.  Going  to  work. 

108.  Returning  from  work. 

109.  Premises  of  employer. 

110.  Means  of  conveyance. 

111.  Leisure  periods — Attendance  on  personal  comforts  and  necessities. 

112.  Negligence  and  recklessness. 

113.  Disobedience. 

114.  Deviation  from  original  employment. 

Division  III. — Arising  Out  of  Employment 

115.  Risks  due  to  employment. 

116.  Risks  peculiar  to  employment. 

117.  Risks  of  commonalty. 

118.  Risks  external  to  the  employment,  but  special  exposure  to  risk  due 

to  employment. 

119.  Injury  from  forces  of  nature. 

120.  Injury  caused  by  coemploye  or  otbers. 

121.  Injury  from  horseplay  or  practical  joking. 

122.  Area  of  duty — Absence — Entry  and  exit. 

123.  Incurring  of  additional  risks. 

124.  Intoxication. 

125.  Susceptibility  to  risk. 

Divi&ioN  IV. — Proof 

126.  Burden,   requisites,    and   sufficiency   of   proof. 


TABLE    OF    CONTENTS 


XI 


ARTICLE  III 

CAUSE  AND  RESULT 

Section 

127.  When  accident  or  injury  proximate  cause. 

128.  When  proximate  cause  of  disease. 

129.  When  proximate  cause  of  hernia — Proof. 

130.  Insanity. 

131.  Resulting  incapacity  or  death. 

132.  Suicide. 

133.  Aggravation  of  existing  disease. 

134.  Aggravation  of  injury  after  accident. 

135.  Additional  injury. 

136.  Treatment  in  general. 

137.  Neglect  and  refusal  of  operation  or  medical  services. 


Section 
138. 
139. 


ARTICLE  IV 
OCCUPATIONAL  DISEASES 


Occupational    diseases. 
Massachusetts. 


Section 
140. 
141. 
142. 
143. 
144. 
145. 
146. 


CHAPTER  VI 

DEFENSES  TO  COMPENSATION  CLAIMS 

Serious  and  willful  misconduct — Purposely  self-inflicted  injury. 

Disobedience — Violation  of  rules. 

Drunkenness. 

Burden  of  proof — Question  of  fact. 
Estoppel  and  res  judicata. 

Negligence,  contributory  negligence,  and  assvunption  of  risk. 
Defenses  under  federal  Act. 


CHAPTER  VII 

COMPENSATION 


Section 

147-154.  Article  I. — Earnings  as  basis  of  compensation. 

155-166.  Article  II. — Disability  and  incapacity  for  work. 

167-174.  Article  III.— Death  benefits. 

375-192.  Article  IV. — Payment,  release,  and  related  matters. 


Xll  TABLE   OF  CONTENTS 

Section 

193-201.     Article  V. — Treatment  and  funeral  expense. 

193-200.  Division  I. — Expenses  of  medical,  surgical,  and  hospital  treat- 

ment. 
201.  Division  II. — Funeral  expenses. 

ARTICLE  I 

EARNINGS  AS  BASIS  OF  COMPENSATION 
Section 

147.  What  constitutes  earnings. 

148.  Loss  of  earning  capacity. 

149.  Massachusetts. 

150.  Computation  of  earnings  in  general. 

151.  Determination  of  average  earnings. 

152.  Average  weelsly  earnings. 

153.  Daily  vpages. 

154.  Federal  Act. 

ARTICLE  II 

DISABILITY  AND  INCAPACITY  FOR  WORK 

Section 

155.  'T)isability"  and  "incapacity  for  work." 

156.  Permanent  total  disability. 

157.  Permanent  partial  disability. 

158.  Temporary  total  disability. 

159.  Temporary  partial  disability. 

160.  Computation  in  case  of  previously  impaired  physical  condition. 

161.  Hernia — California. 

162.  Scheduled  injuries. 

163.  Eye. 

164.  Arm. 

1G5.  Hand,   fingers,   foot,  and  ankle. 

166.  Disfigurement. 

ARTICLE  III 

DEATH  BENEFITS 


Section 

167. 

Computation  and  amount  of  benefit. 

168. 

California. 

169. 

Minnesota. 

170. 

New  Jersey. 

171. 

New  York. 

172. 

Washington. 

173. 

Wisconsin. 

174. 

Federal  Act. 

TABLE    OF    CONTENTS  Xlll 

ARTICLE  IV 

PAYMENT,    RELEASE,    AND    RELATED    MATTERS 

Section 

175.  Time,   commencement,   and  continuation  of  payments. 

176.  Original  federal  Act. 

177.  Waiting  period. 

178.  Original  federal  Act. 

179.  Lump  sum  payments. 

180.  Amount. 

181.  Deductions  from  award  or  settlement. 

182.  Deduction  of  payments  made. 

183.  Deduction  for  interest. 

184.  Increased  and  reduced  compensation. 

185.  Restriction  of  employe's  rights  in  insurance  contract. 
188.  Pensions. 

187.  Change,  suspension,  and  termination  of  compensation. 

188.  California. 

189.  Release. 

190.  Contracting  out. 

191.  Assignment  of  compensation  rights. 

192.  Apportionment. 


ARTICLE  V 

TREATMENT  AND  FUNERAL  EXPENSE 

Division   I. — Expenses   of  Medical,   Surgical,   and  Hospital  Treatment 
Section 

193.  Rights,  duties,  and  liabilities  in  general. 

194.  Massachusetts. 

195.  Failure  or  neglect  of  employer — Procurement  of  services  and  treat- 

ment by  employe. 

196.  Where  physician  is  furnished  by  employer. 

197.  Change  of  physician  or  service. 

198.  Expense  for  which  employer  is  liable. 

199.  Recovery  by  physician. 

200.  Services  of  nurse  or  member  of  the  family. 

Division  II. — Funeral  Expenses 

201.  Provisions  allowing  funeral  expenses. 


XIV 


TABLE   OF    CONTENTS 


Section 
202. 

203-20S. 
209. 

210-215. 

216-222. 

223-236. 

237-250. 

237-238. 

239-245. 

246-250. 

251-252. 


CHAPTER  VIII 

SETTLEMENT  OF  CONTROVERSIES 

Article  I.— Settlement  by  agreement. 

Article  II.— Remedies. 

Article  III.— Legal  proceedings  in  general. 

Article  IV.— Notice  and  claim. 

Article  V. — Evidence. 

Article  VI.— Proceedings  before-  special  tribunal. 

Article  VII.— Proceedings  in  court. 
Division  I.— Original  proceedings. 

Division  II.— Review  of  decision  of  special  tribunaL 
Division  III.— Review  by  higher  court. 

Article  VIII.— Costs  and  attorney's  fees. 


Section 

202.     Amicable  settlements. 


ARTICLE  I 
SETTLEMENT  BY  AGREEMENT 


Section 
203. 
204. 
205. 
206. 
207. 
208. 


ARTICLE  II 

REMEDIES 

Deprivation  of  other  remedies. 

Willful   and    intentional   injuries. 

Washington. 

New  York. 

Arizona. 
Election  of  remedies  after  event. 


Section 
209. 


Practice. 


ARTICLE  III 
LEGAL  PROCEEDINGS  IN  GENERAL 

ARTICLE  IV 

Section  NOTICE  AND  CLAIM 

210.  Notice. 

211.  Notice  to  principal. 

212.  Compensation   claims — Sufficiency — Abatement 

213.  Necessity  of  claim — Waiver. 

214.  Time  for  presentation — Limitations. 

215.  Federal  Act. 


TABLE   OF   CONTENTS 


XV 


ARTICLE  V 

Section  EVIDENCE 

216.  Admissibility. 

217.  Hearsay. 

218.  Declarations  of  workman. 

219.  Burden  of  proof  and  evidence  to  sustain  it— Presumption. 

220.  Report — Evidentiary  effect. 

221.  Medical  examination. 

222.  Federal  Act. 

ARTICLE  VI 

PROCEEDINGS  BEFORE  SPECIAL  TRIBUNAL 

Section 

223.  In  general. 

224.  Jurisdiction. 

225.  Service  of  summons. 

226.  Parties. 

227.  Pleading  and  issues  under  California  Act. 

228.  Taking  and  reception  of  testimony. 

229.  California. 

230.  Hearing,  findings,  and  award. 

231.  California. 

232.  Review  by  special  tribunal. 

233.  Dismissal. 

234.  Reopening  of  case,  rehearing,  and  supplementary  proceedings, 

235.  California. 

236.  Proceedings  under  original  federal  Act. 

ARTICLE  VII 
PROCEEDINGS  IN  COURT 

Division  I. — Original  Proceedings 
Section 

237.  Jurisdiction  and  practice. 

238.  Verdict,  judgment,  and  findings. 

Division  II. — Review  of  Decision  of  Special  Teibunai. 


239. 

Jurisdiction. 

240. 

Jury  trial. 

241. 

Appeal  and  review. 

242. 

Review  of  findings 

and 

decision. 

243. 

Connecticut. 

244. 

"Washington, 

245. 

California. 

1  HoN.CoMP.— b 

XVI 


TABLE   OF  CONTENTS 


Division  III.— Review  by  Higheb  Coubt 

Remedies. 

Right  of  appeal. 

Presentation  below  and  for  review. 

Questions  reviewable. 

Decision. 

ARTICLE  VIII 

COSTS  AND  ATTORNEY'S  FEES 

Section 

251.  Taxation  of  costs. 

252.  Contract  for  fee. 


Section 
246. 
247. 
248. 
249. 
250. 


CHAPTER  IX 

ILLUSTRATIVE  SELECTED  FORMS 

Section 

25'4.  Forms  for  illustration  and  reference. 

254.  Notices — Acceptance,  rejection,  and  withdrawal. 

255.  Notices  to  be  posted,  and  certificate. 

256.  Notice  of  injury  or  claim. 

257.  First  report  of  accident. 

258.  Employer's  reports. 

259.  Agreements. 

260.  Application  for  adjustment  of  claim— Settlement  and  petition. 

261.  Answer  to  application. 

262.  Notice  of  hearing. 

263.  Arbitration. 

264.  Attending  physician's  certificate. 

265.  Proof  of  death,  and  certificate  authorizing  burial. 

266.  Subpoena. 

267.  Petition  for  review. 

268.  Notice  of  hearing. 

269.  Lump  sum  settlements. 

270.  Petition  to  terminate  or  modify. 

271.  Receipt  and  release. 

272.  Insurance — Notices. 


TABLE  OF  CASES  CITED 

(Page  881) 


TABLE    OF    CONTENTS 


XVll 


VOLUME  II 


CHAPTER  X 

TEXT  OF  LEGISLATION 


Page 

Arizona    977 

California   9S8 

Colorado    1029 

Connecticut    1082 

Illinois  1100 

Indiana   1121 

Iowa 113S 

Kansas    1158 

Kentucky    1170 

Louisiana    1200 

Maine 1217 

Mainland    1233 

Massachusetts 1261 

Michigan  1288 

Minnesota   1308 

Montana    1327 

Nebraska    1367 

Nevada    1383 


Page 

New  Hampshire   1402 

New  Jersey 1407 

New  York 1425 

Ohio    1468 

Oklahoma    1503 

Oregon  1521 

Pennsylvania    1539 

Rhode  Island 1558 

Texas  1575 

Vermont    1585 

Washington    1600 

West  Virginia 1619 

Wisconsin   1641 

Wyoming    1658 

United  States  (Federal  Acts) . . .   1672 

Great  Britain  (English  Act) 1685 

Germany     (Synopsis    of    German 
Act)    1708 


INDEX 

(Page  1709) 


SUPPLEMENT 

(Following  page  1905) 
* 


TABLE 


OF 


ABBREVIATIONS  AND  REFERENCES 


THE   STATE   EEPORTS   AKE  CITED   BY  TIIEIB  FAMILIAR   ABBEEVIATIONS 


A.  C Law  Reports,  Appeal  Cases  (1891  et  seq.,  Eng.). 

Am.  St.   Rep American  State  Reports. 

Ann.     Cas American  Annotated  Cases. 

Ann.   Rep.   Kan.  B.  of  L..  Annual  Report  of  the  Kansas  Bureau  of  Labor. 
Ann.    Rep.    Neb.   St.    Dept. 
of    L Annual    Report    of    the    Nebraska   State    Department   of 

Labor. 

App.  C Law  Reports,  Appeal  Cases  (Eng.). 

App.  Div Appellate  Division  (N.  Y.). 

Ariz.   Op.  Atty.  Gen Opinions  of  the  Attorney  General  of  Arizona. 

Atl Atlantic  Reporter. 

Bulletin,    III Bulletin  of  Decisions  of  the  Industrial  Board  of  Illinois. 

Bui.  Ohio  Indus.  Com.  ...Bulletins  of  Decisions   of  the   Industrial  Commission   of 

Ohio. 
Bui.  Wis.  Indus.  Com.  ...Bulletins  of  Decisions  of  the  Industrial  Commission  of 

Wisconsin. 

B.  W.  C.  C Butterworth's  "Workmen's  Compensation   Cases    (British 

cases). 

Cal.  I.  A.  C.  Dec Decisions  of  the  Industrial  Accident  Commission  of  Cal- 
ifornia (published  first  in  bulletins  and  a-fterwards  ;u 
bound  A-olumes;  page  rel'eiences  to  volumes  2  and  3 
are  to  the  bulletins). 

Col.  Indus.  Com Industrial  Commission  of  Colorado. 

Conn.  Comp.  Dec Connecticut  Compensation  Decisions. 

C.  C.  A U.  S.  Circuit  Court  of  Appeals. 

Cranch Cranch,  U.  S.  Supreme  Court  Reports. 

Det.   Leg.    News    Detroit  Legal  News. 

Eng.  Com.   B English  Common  Bench  Reports. 

F Court  of  Sessions,  Scotland  (Fourth  Series). 

Fed Federal  Reporter. 

Gray     Gray,  Massachusetts  Reports. 

I.   A.  C.  Dec See  Cal.  I.  A.  C.  Dec. 

III.   App Illinois  Appellate  Court  Reports. 

Ind.   Indus.    Bd Industrial  Board  of  Indiana. 

lov/a   Op.    Sp.    Counsel   to 

Indus.   Com Opinions   of  the  Special  Counsel  to  the  Iowa  Industrial 

Commissioner. 

I.    R Irish  Reports. 

I  r.   L.  T Irish  Law  Times. 

Ir.    L.  T.   R Irish  Law  Times  Reports. 

I  r.   R Irish  Reports. 

Kan.  Ann.  Rep.  B.  of  L.. Annual  Report  of  the  Kansas  Bureau  of  I^abor. 
K.    B. King's  Bench. 

1  HON.COMP,  (xix) 


XX  TABLE    OF   ABBREVIATIONS    AND    REFERENCES 

L.   Ed Lawyers'  Edition  U.  S.  Supreme  Court  Reports. 

L.   J.    K.    B Lav/  Journal  King's  Bench. 

L.    R.    A Lawyers'   Reports  Annotated. 

L,   R,  A.   (N.  S.)    Lawyers'   Reports  Annotated,   New  Series. 

L.    T Law  Times  (British  cases). 

L.    T.    Jo Law  Times  Journal   (British  cases). 

L.  T.    R Law  Times  Reports  (British  cases). 

Mass.  V/k.  Comp.  Cases..  Reports   of   Cases    under  the   Workmen's    Compensation 
Act  of  Massachusetts. 

Me.    Indus.   Ace.   Com.   ...Industrial  Accident  Commission  of  Maine. 

Mich.    Wk.    Comp.    Cases.  Decisions  of  the  Industrial  Accident  Board  of  Michigan. 

Minn.  Op.  Atty.  Gen Opinions  of  the  Attorney  General  of  Minnesota. 

Minn.  Op.  Dept.  of  L.   ...Opinions  of  the  Department  of  Labor  of  Minnesota. 

Misc.    Rep Miscellaneous  Reports  (N.  Y.), 

Mont.   Indus.  Ace.  Bd.    ...Industrial  Accident  Board  of  Montana. 

Md.  St.    Indus.   Ace.   Com.  State  Industrial  Accident   Commission  of  Maryland. 

N.   C.   C.  A Negligence  and  Compensation  Cases  Annotated. 

N.   E Northeastern  Reporter. 

Neb.     Ann.     Rep.     of     St. 

Dept.  of  L Annual   Report    of    the    Nebraska    State   Department    of 

Labor. 

Nev.   Rep.   Indus.  Com.   ..Report  of  the  Industrial  Commission  of  Nevada. 

N.  J.   Law    New  Jersey  Law  Reports. 

N.    W Northwestern  Reporter. 

N.  Y.  St.  Dep.  Rep New  York  State  Department  Reports. 

Okl.   St.   Indus.   Com State  Industrial  Commission  of  Oklahoma. 

Op.    Atty.   Gen Opinions  of  the  Attorney  General   of  the  L^nited   States. 

Op.    Atty.    Gen.    Minn....  Opinions  of  the  Attorney  General  of  IMinnesota. 

Op.  Atty.  Gen.  Wash.    ...  Opinions  of  the  Attorney  General  of  the  State  of  Wash- 
ington. 

Op.   Compt.  of  T Opinions  of  the  Comptroller  of  the  United  States  Treas- 
ury. 

Op.  Dept.  of  L.,  Minn....  Opinions  of  the  Department  of  Labor  of  Ivlinnesota. 

Op.  Mich.  Indus.  Aec.   Bd.  Opinions  of  the  IMichigan  Industrial  Accident  Board. 

Op.  Sol.  Dept.  of  Labor. ..  Opinions  of  Solicitor  United  States  Department  of  Labor 
from  August,  1908,  to  April,  1915. 

Op.    Sp.    Counsel   to    Iowa 

Indus.   Com Opinions  of  the  Special  Counsel  to  the  Iowa  Industrial 

Commissioner. 

Or.       Rep.      Indus.      Ace. 
Com Reports  of  the  Industrial  Accident  Commission  of  Ore- 
gon. 

Pac Pacific  Reporter. 

Pa.  St.   Wk.   Ins.   Ed State  Workmen's  Insurance   Board  of  Pennsylvania. 

Pa.  Wk.   Comp.   Bd Worlimen's  Compensation  Board  of  Pennsylvania. 

Q.    B Queen's  Bench. 

Q.    B.    D Law  Reports,   Queen's  Bench  Division   (1876-90). 

Rep.  Indus.  Aec.  Com.  Or.  Reports  of  the  Industrial  Accident  Commission  of  Ore- 
gon. 

Rep.   Indus.  Com.  Nev.   ..Report  of  the  Industrial  'Commission  of  Nevada. 

Rep.   Wis.    Indus.   Com Reports  of  the  Wisconsin  Industrial  Commission. 

Rul.    Vv/ash,     Indus.     Ace. 
Ins.    Com Rtiiings  of  the  Industrial   Accident  Insurance   Commis- 
sion of  the  State  of  Washington. 

S.    E Southeastern  Reporter. 

S.    C Session  Cases. 

S.   L.   R Scottish  Law  Reports. 

So Southern  Reporter. 

Stone's     W.     C.     A.     Ins. 
Cas Stone's    Workmen's   Compensation    and    Accident    Insur- 
ance Cases  (British  cases). 

Sup.  Ct United  States  Supreme  Court  Reporter. 


TABLE    OF   ABBREVIATIONS    AND   REFERENCES  XXI 

S.    W Southwestern  Reporter. 

Tex.   Civ.  App Reports  of   Opinions   of  the  Courts   of  Civil  Appeals  of 

Texas. 

Tex.    Emp'rs'    Ins.    Assoc.  Employers'  Insurance  Association  of  Texas. 

Tex.    Indus.  Ace.    Bd Industrial  Accident  Board  of  Texas. 

The    Bulletin    A  magazine  issued  monthly  by  the  New  York  St».te  In- 
dustrial Commission. 

T.    L.    R Time  Law  Reports   (British  cases). 

U.   S United   States   Supreme  Court  Reports. 

Vt.    Indus.   Ace.   Bd Industrial  Accident  Board  of  Vermont. 

Wall Wallace,  United  States  Supreme  Court  Reports. 

Wash.   Op.  Atty.  Gen Opinions  of  the  Attorney  General  of  the  State  of  Wash- 
ington. 

Wash.     Rul.     Indus.     Ace. 

Ins.    Com Rulings    of   the   Industrial   Accident  Insurance   Commis- 
sion of  the  State  of  Washington. 

W.    C.   C Workmen  Compensation  Cases  (British  cases). 

W.  0.  &  Ins.  Rep Workmen's  Compensation   and  Insurance  Reports   (Brit- 
ish cases). 

W.   C.    R Workmen's  Compensation  Reports  (British  cases). 

Wk.    Comp.   Act    Workmen's  Compensation  Act. 

W.  Va.  St.  Comp.  Com...  State  Compensation  Commissioner  of  West  Virginia. 


THE  LAW  OF 
WORKMEN'S  COMPENSATION 

VOLUME  I 


HON.COMP.  (1)* 


but  th' 


ACTS  IN   GENERAL  §    1 

CHAPTER  I 

WORKMEN'S  COMPENSATION  ACTS  IN  GENERAL 

Section 

1-5.  Article  I. — History,  purpose  and  scope. 

6-11.  Article   II. — Construction  and   operation. 

12-19.  Article  III.— Validity. 


ARTICLE  I 

HISTORY,  PURPOSE  AND  SCOPE 

Section 

1.  History. 

2.  Theory,  purpose,  and  scope. 

3.  Report  of  Wainwright  Commission. 

4.  Scope  of  legislation  and  change  effected. 

5.  Insurance  features. 

§  1.     History 

The  trend  of  state  legislation  indicates  a  rapid  increase  in  senti- 
ment favorable  to  those  principles  which  underlie  the  Workmen's 
Compensation  Acts.  While  the  features  of  these  acts  are  pat- 
terned largely  after  the  English  Act,  the  compensation  idea  seems 
to  have  originated  in  Germany.  The  economic  loss  from  voca- 
tional disease,  industrial  accidents,  old  age,  and  nonemployment, 
created  in  the  German  States,  prior  to  the  days  of  the  Empire,  a 
sentiment  favorable  to  some  plan  of  compensation,  but  the  credit 
for  crystallizing  this  sentiment  into  workable  laws  rests  with  Bis- 
marck. From  the  enactment  of  a  sick  insurance  statute  in  Ger- 
many in  1883,  the  idea  of  compensation  based  on  risks  arising  out 
of  the  business  and  impairment  of  earning  capacity  spread  to 
other  European  countries,  and  finally  to  the  United  States.  The 
federal  government,  32  states,  Alaska,  Hawaii,  and  the  Canal  Zone 
now  have  measures  for  the  relief  of  injured  workmen  which  are 


§  1  workmen's  compensation  4 

patterned  after  either  the  German  insurance,  or  the  English  com- 
pensation plan,  or  both.^  In  consequence  of  the  common  origin  of 
these  Acts,  they  bear  a  close  resemblance  to  each  other  in  their 
essential  features.^  The  basic  German  insurance  plan  and  English 
compensation  plan  seek  the  same  ultimate  end,  though  by  some- 
what different  means,  and  the  term  "workmen's  compensation"  is 
sufficiently  comprehensive  for  all  practical  purposes  to  include 
both.3 

1  Compensation  laws  are  in  force  in  the  following  states:  Arizona,  Cali- 
fornia, Colorado,  Connecticut,  Illinois,  Indiana,  Iowa,  Kansas,  Kentucky, 
Louisiana,  Massachusetts,  Maine,  Maryland,  Michigan,  Minnesota,  Montana, 
Nebraska,  Nevada,  New  Hampshire,  New  Jersey,  New  York,  Ohio,  Oklahoma, 
Oregon,  Pennsylvania,  Rhode  Island,  Texas,  Vermont,  Washington,  West  Vir- 
ginia, Wisconsin,  and  Wyoming.  The  first  Kentucky  law  was  declared  un- 
constitutional, and  the  present  law  became  effective  August  1,  1916.  The  law 
passed  by  the  Idaho  Legislature  was  vetoed  by  the  Governor.  The  states  above 
named  have  approximately  75  per  cent,  of  the  population  and  nearly  85  per 
cent,  of  the  workmen  engaged  in  manufacturing  in  the  continental  United 
States. 

The  original  New  York  Act,  enacted  in  1910  (Labor  Law  [Laws  1910,  c.  674] 
art.  14a),  was  modeled  after  the  English  Workmen's  Compensation  Act  of  1897. 
Ives  V.  South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  L.  R.  A.  (N.  S.) 
162,  Ann.  Cas.  1912B,  156. 

2  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245;  Mackin  v.  Detroit 
Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49 ;  State  v.  Industrial  Commission, 
92  Ohio  St.  434,  111  N.  E.  299. 

They  are  the  expression  of  widely  prevalent  sentiments  which  have  exerted 
a  compelling  influence  on  legislation  in  other  countries  as  well  as  in  the  United 
States.    Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac.  398. 

"Confronted  with  a  legislative  history  covering  more  than  30  years  and 
extending  to  practically  all  of  Europe,  to  many  of  the  European  dependencies, 
and  to  more  than  one-half  of  the  United  States,  the  members  of  the  Legis- 
lative Assembly  of  1915  must  be  credited  with  an  understanding  of  compen- 
sation measures  as  they  were  generally  understood  at  that  time,  and  with  an 
intention  to  employ  terms  appropriate  to  such  measures  as  they  were  gener- 
ally employed  under  like  circumstances."  Lewis  and  Clark  County  v.  Indus- 
trial Ace.  Board  (Mont.)  155  Pac.  268. 

3  Id. 

The  Act  should  be  designated  and  referred  to  as  the  "Workmen's  Compensa- 
tion Act,"  not  as  the  "Employers'  Liability  Act,"  though  it  has  some  of  the 


5  ACTS   IN  GENERAL  §    2 

§  2.     Theory,  purpose,  and  scope 

The  proper  administration  of  Workmen's  Compensation  Acts 
necessitates  an  appreciation  of  the  legislative  purpose  to  abolish  the 
common-law  system  relating  to  injuries  to  employes  as  inadequate 
to  meet  modern  conditions  *  and  conceptions  of  moral  obligations,^ 
and  substitute  therefor  a  system  based  on  a  high  conception  of 

characteristics  of  both.    Gregutis  v.  Waclark  Wire  Works,  86  N.  J.  Law,  610, 
92  Atl.  354. 

4  It  was  the  intention  of  the  Legislature  of  New  York  to  supersede  "rules 
of  law  governing  legal  liability"  which  were  stated  by  Governor  Hughes  to 
"offend  the  common  sense  of  fairness,"  and  to  carry  out  the  recommendation 
of  the  Wainwright  Commission  of  1909  that  the  state  should  "establish  a  new 
system  of  compensation  for  accidents  to  workmen."  In  re  Rheinwald,  168  App. 
Div.  42.5,  153  N.  Y.  Supp.  598. 

All  the  Compensation  Acts,  whether  elective  or  compulsory,  rest  on  the 
notion  that  the  common-law  remedy  by  action  involves  intolerable  delay  and 
great  economic  waste,  gives  inadequate  relief,  operates  unequally,  and  that, 
whether  viewed  from  the  standpoint  of  the  employer  or  that  of  the  employe, 
it  is  inequitable  and  unsuited  to  the  conditions  of  modern  industry.  Western 
Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac.  398. 

In  an  opinion  by  Judge  Johnson,  in  the  case  of  State  ex  rel.  v.  Creamer,  85 
Ohio  St.  349,  386,  97  N.  B.  602,  003,  39  L.  R.  A.  (N.  S.)  694,  construing  the 
original  Ohio  Act,  the  court  says  of  the  Act:  "It  provides  a  plan  of  compen- 
sation for  injuries  *  *  *  resulting  from  accidents  to  employes.  *  *  * 
The  system,  which  has  been  followed  in  this  country,  of  dealing  with  acci- 
dents in  industrial  pursuits,  is  wholly  unsound.  *  *  *  There  has  been 
enormous  waste  under  the  present  system,  and  *  *  *  the  action  for  per- 
sonal injuries  by  employe  against  employer  no  longer  furnishes  a  real  and 
practical  remedy,  annoys  and  harasses  both,  and  does  not  meet  the  economic 
and  social  problem  which  has  resulted  from  modern  industrialism." 

5  The  purpose  of  the  Act  is  to  substitute  a  method  of  accident  Insurance  in 
place  of  the  common-law  rights  and  liabilities  for  substantially  all  employes 
except  domestic  servants,  farm  laborers,  and  masters  of  and  seamen  on  vessels 
engaged  in  interstate  or  foreign  commerce,  and  those  whose  employment  is 
casual  or  not  in  the  usual  course  of  trade,  business,  or  employment  of  the 
employer,  and  probably  those  subject  to  the  federal  Employers'  Liability  Act 
(Act  April  22,  1908,  c.  149,  35  Stat.  65  [U.  S.  Comp.  St.  1913,  §§  8657-8665]). 
It  was  a  humane  measure  enacted  in  response  to  a  strong  public  sentiment 
that  the  remedies  afforded  by  actions  of  tort  at  common  law  and  under  the 
state  Employers'  Liability  Act  had  failed  to  accomplish  that  measure  of  pro- 


A 


§  2  workmen's  compensation  6 

man's  obligation  to  his  fellow  man,^  a  system  recognizing  every  per- 
sonal loss  to  an  employe,  which  is  not  self-inflicted,  as  an  element 

tectiou  against  injuries  and  in  case  of  accident  whicli  should  be  afforded  to 
the  workman.    Young  v.  Duncan,  218  Mass.  346,  106  N.  E.  1. 

The  originators  of  the  Workmen's  Compensation  Acts  believed  that  they 
would  lessen  crime.  Some  of  the  considerations  bcliind  them  were  economic: 
The  difficulty  and  hardship  involved  in  proving  the  workman's  case,  the 
great  waste  in  procuring  a  recovery,  the  delay  in  obtaining  the  relief,  the 
uncertainty  oftentimes  in  determining  the  cause  of  the  accident,  the  vastly 
increased  dangers,  and  the  impossibility  of  personal  supervision  by  the  em- 
ployer, under  modern  conditions  of  employment,  and  the  necessity  of  the 
workman  accepting  employment  under  conditions  of  increased  danger  or  suf- 
fering loss  of  livelihood.  Some  were  moral:  The  prevention  of  the  tendency 
of  some  workmen  to  press  unfounded  claims,  and  the  tendency  of  some  em- 
ployers to  defend  by  means  of  questionable  fairness.  Appeal  of  Hotel  Bond 
Co.,  89  Conn.  143,  93  Atl.  245. 

6  The  paramount  object  of  the  diverse  workmen's  compensation  enactments 
which  have  been  adopted  by  several  of  the  states  of  the  Union  and  in  foreign 
countries  has  been  the  enactment  of  what  has  been  claimed  to  be  more  just 
and  humane  laws  to  take  the  place  of  the  common-law  remedy  for  the  com- 
pensation of  workmen  for  accidental  injuries  received  in  the  course  of  their 
employment,  by  the  taking  away  and  removal  of  certain  defenses  in  that  class 
of  cases.  Adams  v.  Acme  White  Lead  &  Color  Wks.,  182  :Mich.  157,  148  N.  W. 
485,  L.  R.  A.  1916A,  282. 

Though  the  Ohio  Act  had  in  view  the  establishment  of  an  insurance  fund, 
it  was  passed  primarily  to  protect  the  life  and  limb  of  the  employe.  McWeeny 
V.  Standard  Boiler  &  Plate  Co.  (D.  C.)  210  Fed.  507,  affirmed  218  Fed.  361. 
134  C.  C.  A.  169. 

As  said  by  Judge  Fullerton:  "Theoretically,  of  course,  the  employer  and 
employe,  on  entering  into  a  contract  by  which  the  one  engages  the  services  of 
the  other,  stand  on  the  same  plane,  but  in  practice,  as  it  is  well  known,  this 
ideal  condition  very  seldom  exists.  Greed  and  sagacity  on  the  one  side,  and 
necessity  and  incapacity  on  the  other,  sometimes  lead  to  contracts  that  create 
conditions  little  short  of  peonage,  and  our  own  reports  abound  with  instances 
where  men  have  been  induced  to  work  in  situations  so  dangerous  to  life  and 
limb  that  the  wonder  is  not  that  some  of  them  were  injured,  but  rather  that 
any  of  them  escaped  injury.  Indeed,  it  is  a  common  thing  for  an  employer, 
in  defense  of  an  action  of  damages  brought  by  his  employe  for  injury  re- 
ceived in  such  a  situation,  to  urge  that  the  dangers  of  the  place  were  so 
obvious  and  apparent  that  the  employe  was  guilty  of  contributory  negligence 
for  working  therein.  These  conditions,  we  think,  authorize  the  interference 
of  the   Legislature.     *     *     *     The  obligation  of  the  employe   to  accept   the 


7  ACTS  IN  GENERAL  §    2 

of  the  cost  of  production^  to  be  charged  to  the  industry  rather 
than  to  the  individual  employer,^  and  liquidated  in  the  steps  end- 
conditions  of  thQ  statute  can  rest  on  the  welfare  of  the  state."  State  v, 
Clausen,  G5  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466. 

7  The  object  of  the  Workmen's  Compensation  Act  is  to  minimize  personal 
injury,  distress,  and  loss,  and  throw  the  burden  upon  the  public  as  well  as  on 
the  person  injured,  recognizing  that  such  loss  legitimately  enters  into  the  cost 
of  production  as  wages.  City  of  Milwaukee  v.  Miller,  154  Wis.  652,  144  N.  W. 
188,  L.  R.  A.  1916A,  1,  Ann.  Cas.  1915B,  847. 

The  general  purpose  of  the  Act  is  to  make  compensation  for  the  numerous 
accidents  and  injuries  to  workmen,  which  under  present  conditions  occur  in 
industrial  enterprises,  a  part  of  the  cost  of  production.  It  seeks  to  do  this  in 
accordance  with  a  carefully  regulated  scheme,  disregarding  many  of  the  prin- 
ciples of  the  common  law  which  formerly  affected  actions  to  recover  compen- 
sation for  such  injuries.    Jillson  v.  Ross  (R.  I.)  94  Atl.  717. 

"The  remedy  provided  by  our  Compensation  Act  is  substitutionary  in  char- 
acter, furnishing  what  was  purposed  to  be  a  more  humanitarian  and  economi- 
cal system  as  a  substitute  for  one  deemed  wasteful  to  industrial  enterprises 
and  commerce,  and  unfair  to  employes.  Its  intent  was  to  afford  its  protection 
to  all  Connecticut  employers  and  employes  who  might  voluntarily  choose  to 
make  its  provision  for  compensation  for  injury  a  part  of  their  contracts  of 
employment.  It  assumed  that  accident  is  incident  to  employment,  and  pur- 
posed to  charge  its  cost  in  the  case  of  every  injury  not  caused  by  the  willful 
and  serious  misconduct  or  intoxication  of  the  injured  employe  to  the  industry 
in  which  it  occurred.  It  intended  that  the  employe  should  know  what  com- 
pensation he  or  his  dependents  would  receive  in  the  event  of  injury,  and 
that  payment  should  be  made  speedily  by  a  procedure  at  once  simple  and  in- 
expensive. It  intended  that  the  employer  should  know  his  liability  in  this 
regard,  and  so  might  include  it  among  the  cost  of  operation."  Kennerson  v. 
Thames  Towboat  Co.,  89  Conn.  367,  94  Atl.  372,  L.  R.  A.  1916A,  436  (opinion 
by  Wheeler,  J.). 

The  workmen's  compensation  legislation  Is  based  on  the  economic  principle 
of  trade  risk,  in  that  personal  injury  losses  incident  to  industrial  pursuits 
are,  like  wages  and  breakage  of  machinery,  a  part  of  the  cost  of  production. 
Mackin  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49.  The  Work- 
men's Compensation  Act  is  a  humane,  remedial  enactment  which  is  intended 
to  give  vitality  to  the  idea  that  personal  injury  losses  incident  to  an  employe's 
service  are  as  much  a  part  of  the  labor  cost  of  such  service  as  wages  paid, 
and  should,  in  some  practicable  way,  be  so  treated.  Village  of  Kiel  v.  Indus- 
trial Commission  of  Wisconsin  (Wis.)  158  N.  W.  68. 

8  There  is  no  doubt  that  it  was  the  legislative  intent  to  compensate  work- 
men for  injuries  resulting  from  industrial  accidents,  and  that  such  compen- 


§  2  workmen's  compensation  8 

ing  with  consumption,^  so  that  the  burden  is  finally  borne  by  the 
community  in  general.^'*    The  fundamental  principle  of  government 

sation  is  charged  against  the  industry  because  it  is  responsible  for  the  injury. 
)  Klawinski  v.  Lake  Shore  &  M.  S.  Ry.  Co.,  185  Mich.  643,  152  N.  W.  213,  L.  R. 

A.  1916A,  342. 

The  position  in  the  line  of  causation  which  employers  sustain  in  modern 
industrial  pursuits  is  the  basic  fact  on  which  employer's  liability  laws  rest. 
Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  6S6,  151  Pac.  398;  State  v. 
Creamer,  85  Ohio  St.  349,  97  N.  E.  602,  39  L.  R.  A.  (N.  S.)  694.  The  theory  is 
that  each  time  an  employe  is  killed  or  injured  there  is  an  economic  loss,  which 
must  be  made  up  or  compensated  in  some  way;  that  most  accidents  are  at- 
tributable to  the  inherent  risk  of  employment — that  is,  no  one  is  directly  at 
fault ;  that  the  burden  of  this  economic  loss  should  be  borne  by  the  industry, 
rather  than  by  society  as  a  whole;  that  a  fund  should  be  provided  by  the 
industry  from  which  a  fixed  sum  should  be  set  apart  as  every  accident  occurs 
to  compensate  the  person  injured,  or  his  dependents,  for  his  or  their  loss. 
State  V.  Industrial  Commission,  92  Ohio  St.  434,  111  N.  E.  299. 

Workingmen's  insurance  and  compensation  laws  are  the  products  of  the 
development  of  the  social  and  economic  idea  that  the  industry  which  has 
always  borne  the  burden  of  depreciation  and  destruction  of  the  necessary  ma- 
chinery shall  also  bear  the  burden  of  repairing  the  efficiency  of  the  human 
machine  without  which  the  industry  itself  could  not  exist.  Lewis  and  Clark 
County  V.  Industrial  Ace.  Board  (Mont.)  155  Pac.  268. 

9  The  theory  of  this  legislation  is  that  the  risk  of  injury  to  workmen  in  the 
industries  covered  by  the  law  should  be  borne  by  the  industries  rather  than 
by  the  individual  workman  alone.  As  the  ultimate  result,  the  burden  thus 
imposed  in  the  first  instance  on  the  employer  will  be  distributed,  as  part  of 
the  cost  of  production,  among  the  consuming  public.  Western  Indemnity  Co. 
V.  Pillsbury,  170  Cal.  686,  151  Pac.  398;  State  v.  Clausen,  65  W^ish.  156,  117 
Pac.  1101,  37  L.  R..  A.  (N.  S.)  466. 

Proper  administration  of  the  Workmen's  Compensation  Act  requires  appre- 
ciation of  the  manifest  legislative  purpose  to  abolish  the  common-law  system 
regarding  injuries  to  employes  as  unsuitable  to  modern  conditions  and  con- 
ceptions of  moral  obligations,  and  erect  in  place  thereof  one  based  on  the 
highest  present  conception  of  man's  humanity  to  man  and  obligations  to  mem- 
bers of  the  employ^  class — one  recognizing  every  personal  loss  to  an  employe, 
not  self-inflicted,  as  necessarily  entering  into  the  cost  of  production  and  re- 
quired to  be  liquidated  in  the  steps  ending  with  consumption.  City  of  Mil- 
waukee V.  Miller,  154  Wis.  652,  144  N.  W.  188,  L.  R.  A.  1916A,  1,  Ann.  Cas. 
1915B,  847. 

In  the  enactment  of  the  compensation  law,  the  Legislature  recognized  that 

10  See  note  10  on  following  page. 


9  ACTS  IN  GENERAL  §    ^ 

parallel  with  this  purpose,  and  on  which  all  compensation  legis- 
lation is  based,  the  principle  which  was  first  advocated  by  Bis- 
marck in  Germany  in  about  the  year  1880,  and  later  by  Lord  Salis- 
bury in  England,  is  that  in  a  modern  industrial  state  the  risk  of 

the  common-law  remedies  for  injuries  sustained  in  certain  hazardous  indus- 
tries were  inadequate,  unscientific,  and  unjust,  and  therefore  a  substitute  was 
provided,  by  which  a  more  equitable  adjustment  of  such  could  be  made  under 
a  system  which  was  intended  largely  to  eliminate  controversies  and  litigation 
and  place  the  burden  of  accidental  injuries,  incident  to  such  employments, 
upon  the  industries  themselves,  or  rather  upon  the  consumers  of  the  products 
of  such  industries.    McRoberts  v.  National  Zinc  Co.,  93  Kan.  364,  144  Pac.  247. 

Injuries  sustained  by  those  who  perform  the  manual  and  mechanical  tasks 
of  an  industry  must  be  deemed  to  have  been  intended  by  this  statute  to  be 
made  a  social  risk,  a  liability  of  the  industry,  a  charge  upon  the  production 
cost  of  the  article  manufactured  or  the  service  rendered.  In  re  Rheinwald, 
16S  App.  Div.  425,  153  N.  Y.  Supp.  598.  In  contemplation  of  the  Act  and  the 
constitutional  provision  under  which  it  was  passed,  accidents  in  the  employ- 
ment finally  fall  upon  the  consumer,  and  not  upon  the  employe  or  employer ; 
the  State  Commission  standing  between  the  employe,  the  employer,  and  the 
ultimate  consumer.  McQueeney  v.  Sutphen  &  Hyer,  167  App.  Div.  52S,  153 
N.  Y.  Supp.  554. 

The  theory  of  the  law,  and  of  the  underlying  constitutional  authorization,  is 
that  the  accidents  growing  out  of  the  operation  of  industrial  enterprises 
become  a  legitimate  part  of  what  is  known  in  commercial  life  as  the  "over- 
head" cost,  the  same  as  the  breakage,  wear,  and  tear  of  machinery  and  equip- 
ment, and  it  is  only  in  those  industries  which  are  carried  on  for  pecuniary 
gain  that  "the  cost  of  operating  the  business"  can  be  taken  care  of  in  the 
fixing  of  the  price  of  the  product.    Allen  v.  State  (Sup.)  160  N.  Y.  Supp.  So. 

10  The  plain  purpose  of  Laws  1913,  c.  816,  was  to  make  the  risk  of  accident 
one  of  the  industry  itself,  to  follow  from  the  fact  of  the  injury,  and  hence  that 
compensation  on  account  thereof  should  be  treated  as  an  element  iti  the  cost 
of  production,  added  to  the  cost  of  the  article  and  borne  by  the  community  in 
general.  That  the  statute  might  be  general  in  its  scope  provision  was  made 
to  provide  for  compensation  for  every  accidental  personal  injury  to  an  em- 
ploye arising  out  of  and  in  the  course  of  the  employment,  with  the  two  excep- 
tions specified  in  the  statute.  Kenny  v.  Union  Ry.  Co.,  166  App.  Div.  497,  152 
N.  Y.  Supp.  117.  The  scheme  of  the  statute  is  to  charge  upon  the  business, 
through  insurance,  the  losses  caused  by  it,  making  the  business  and  the  ulti- 
mate consumer  of  its  product,  and  not  the  injured  employe,  bear  the  burden 
of  the  accidents  incident  to  the  business.  The  statute  contemplates  the  pro- 
tection, not  only  of  the  employe,  but  of  the  employer,  at  the  expense  of  the 
ultimate  consumer.     Spratt  v.  Sweeney  &  Gray  Co.,  168  App.  Div.  403,  153 


§  2  workmen's  compensation  10 

injury  to  workmen  while  engaged  in  the  employer's  service  is  a  so- 
cial risk,  chargeable  against  the  business  itself,  the  losses  arising 
from  which  are  to  be  added  to  the  productive  cost  and  to  be  borne 
ultimately  by  the  community  at  large.  This  principle  has  been 
generally  accepted  in  Europe  for  years,  and  is  regarded  by  socio- 
logical writers  as  a  forward  step  in  the  progress  and  development 
of  a  civilized  state.  It  permits  an  injured  workman,  or,  in  the 
event  of  his  death,  his  dependents,  to  demand  as  a  right  that  which 

N.  Y.  Supp.  505.  The  purpose  of  the  Workmen's  Compensation  Act  was  to 
make  the  risk  of  an  accidental  injury  one  of  the  industry  itself,  even  when 
happening  through  the  fault  of  the  workman,  treating  it  as  an  element  of  the 
cost  of  production,  to  be  added  thereto  and  hence  borne  by  the  community  in 
general.  Moore  v.  Lehigh  Valley  R.  Co.,  169  App.  Div.  177,  154  N.  Y.  Supp. 
020. 

The  evil  sought  to  be  remedied  "is  one  that  calls  loudly  for  action.  Accidents 
to  workmen  in  the  industries  eniuuerated  in  it  are  all  but  inevitable.  It  seems 
that  no  matter  how  carefully  laws  for  the  prevention  of  accidents  in  such 
industries  may  be  framed,  or  how  rigidly  they  may  be  enforced,  there  is  an 
element  of  human  equation  that  enters  into  the  problem  which  cannot  be 
eliminated  and  which  invariably  causes  personal  injuries  and  consequent  finan- 
cial losses  to  workmen  engaged  therein.  Heretofore  these  losses  have  been 
borne  by  the  injured  workmen  themselves,  by  their  dependents,  or  by  the  state 
at  large.  It  was  the  belief  of  the  Legislature  that  they  should  be  borne  by 
the  industries  causing  them,  or,  perhaps  more  accurately,  by  the  consumers 
of  the  products  of  such  industries.  That  the  principle  thus  sought  to  be  put 
into  effect  is  economically,  sociologically,  and  morally  sound,  we  think  must 
be  conceded.  It  is  so  treated  by  the  learned  counsel  who  have  filed  briefs  in 
support  of  the  auditor's  contentions ;  it  is  so  conceded  by  all  modern  states- 
men, jurists,  and  economic  writers  who  have  voiced  their  opinion  on  the  sub- 
ject, and  the  principle  has  been  enacted  into  law  by  nearly  all  of  the  civilized 
countries  of  Europe,  by  Australia,  by  New  Zealand,  by  the  Transvaal,  by  the 
principal  provinces  of  the  Dominion  of  Canada,  and  in  a  partial  form,  at  least, 
by  one  or  more  of  South  American  Republics.  Indeed,  so  universal  is  the 
sentiment  that  to  assert  to  the  contrary  is  to  turn  the  face  against  the  en- 
lightened opinion  of  mankind.  The  common  law  does  not  purport  to  afford  a 
remedy  for  the  condition  here  found  to  exist.  It  affords  relief  to  an  injured 
workman  in  only  a  limited  number  of  cases — cases  where  the  injury  is  the 
result  of  fault  on  the  part  of  the  employer  and  there  is  want  of  fault  on  the 
part  of  the  workman.  For  the  greater  number  of  injuries  traceable  to  the 
dangers  incident  to  industry,  no  remedy  at  all  is  afforded."  State  v.  Clausen, 
65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466. 


11  ACTS  IN  GENERAL  §    2 

they  were  often  compelled  to  ask  as  a  charity,  with  the  ultimate 
costs  in  either  event  upon  the  community.^^  This  purpose  exists, 
though  the  primary  liability  for  compensation  or  insuring  the  em- 
ploye against  loss  rests  on  the  employer.^^  In  place  of  the  common- 
law  remedy,  which  involves  tedious  delays  and  great  economic 
waste,  it  has  been  sought  by  this  legislation  to  provide  a  certain  and 
speedy  method  by  which  injured  employes  and  their  dependents 
may  secure,  at  a  minimum  of  cost  ^^  and  free  from  certain  well- 

11  Lindebauer  v.  Weiner,  94  Misc.  Rep.  612,  159  N.  Y.  Supp.  9S7. 

12  The  purpose  is  ito  insure  the  workman  at  the  expense  of  the  employer 
against  personal  injuries  not  expected  or  designed  by  the  workman  himself, 
provided  such  injuries  arise  out  of  and  in  the  course  of  employment.  In  re 
Heitz,  218  N.  Y.  148,  112  N.  E.  750,  affirming  (Sup.)  155  N.  Y.  Supp.  1112; 
Trim  (Joint  Dist.  School  Board  v.  Kelly,  App.  Cas.  667. 

Compensation  legislation  rests  on  the  economic  and  humanitarian  principles 
that  compensation  should  be  given  at  the  expense  of  the  business  to  the  em- 
ploy6  or  his  representative  for  earning  capacity  destroyed  by  an  accident  in 
the  course  of  or  connected  with  his  work.  Waters  v.  William  J.  Taylor  Co., 
218  N.  Y.  248,  112  N.  E.  727,  affirming. 170  App.  Div.  942,  154  N.  Y,  Supp.  1149. 

13  Its  purpose  is  to  furnish  a  remedy  that  will  reach  every  injury  sustained 
by  a  workman  engaged  in  any  of  such  industries,  and  make  a  sure  and  cer- 
tain award  therefor.  State  v.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R. 
A.  (N.  S.)  466;  Shade  v.  Ash  Grove  Lime  &  Portland  Cement  Co.,  93  Kan. 
257,  144  Pac.  249 ;  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac. 
398. 

It  was  intended  by  the  Legislature  that  litigation  under  this  Act  shall  pro- 
ceed to  a  final  determination  without  unreasonable  delay.  Jillson  v.  Ross  (R. 
I.)  94  Atl.  717. 

The  Act,  by  eliminating  the  proof  of  negligence,  by  minimizing  the  delay 
in  the  award,  and  by  making  it  reasonably  certain,  seeks  to  avoid  the  great 
waste  of  the  tort  action,  and  to  promote  better  feeling  between  workman 
and  employer,  and  accepts  as  an  inevitable  condition  of  industry,  the  happen- 
ing of  accident  and  charges  its  cost  to  the  industry.  It  imposes  upon 
the  employer,  presumably,  his  share  of  a  common  loss  in  a  common  industry. 
The  period  of  compensation  is  limited  as  a  "concession,"  it  is  said,  "to  expe- 
diency," although  logically  the  spirit  and  purpose  of  the  Act  can  only  be 
met  by  having  the  period  commensurate  with  the  period  of  injury  or, depend- 
ence. The  certainty  of  receipt  of  compensation  for  injury  follows  the  Act. 
Its  procedure  contemplates  a  speedy  investigation  and  hearing  by  a  commis- 
sioner, without  the  formalities  of  a  court,  and  without,  as  a  general  rule,  the 


§  2  workmen's  compensation  12 

established  rules  of  law,  compensation  which  will  be  more  uniform 
than  that  awarded  by  juries/*  and  which,  so  far  as  practicable,  is 

employment  of  an  attorney.  It  attempts  to  improve  the  condition  of  work- 
men under  modern  methods  of  industry  by  giving  him  partial  recompense  for 
an  injury,  with  a  result  more  certain  and  speedy  and  less  expensive  than  un- 
der the  former  method  in  tort  litigation.  Appeal  of  Hotel  Bond  Co.,  89  Conn. 
143,  93  Atl.  245. 

The  purpose  of  the  Act  is  to  insure  that  compensation  shall  go  intact  to  the 
injured  employe  or  his  dependents  without  any  shrinkage  by  passing  through 
or  into  the  hands  of  assigns,  agents,  attorneys,  friends,  or  relatives ;  it  being 
common  knowledge  that,  if  a  sum  of  money  on  its  journey  from  the  one  from 
whom  to  the  one  to  whom  it  is  due  passes  through  the  hands  of  others,  it  is 
inevitable  that  it  suffers  diminution,  sometimes  almost  to  the  vanishing  point. 
State  V.  Industrial  Commission,  92  Ohio  St.  434,  111  N.  E.  299.  The  original 
Ohio  Workmen's  Compensation  Act  was  passed  May  31,  1911  (102  Ohio  Laws, 
p.  524).  Its  purpose,  well  expressed  in  its  title,  was:  "To  create  a  state  in- 
surance fund  for  the  benefit  of  injured  and  the  dependents  of  killed  em- 
ployes, and  to  provide  for  the  administration  of  such  fund  by  a  state  liability 
board  of  awards."    Id. 

"A  striking  feature  of  a  good  Compensation  Act  is  the  promptitude  and 
ease  with  which  claims  for  compensation  are  settled.  Out  of  a  total  of  11,377 
claims  handled  during  the  year,  10,534,  or  93  per  cent,  were  settled  directly 
between  the  parties.  Of  the  remaining  843  claims,  804  were  disposed  of  after 
hearing  by  the  Commission.  There  were  only  39  court  cases  in  all.  Taking 
the  total  experience  of  the  Commission  to  date,  only  30  cases  out  of  every 
1,000  are  brought  before  the  Commission,  and  only  2  cases  are  carried  to  the 
courts."    Rep.  Wis.  Indus.  Com.  1914-15,  p.  2. 

14  While  the  legislation  of  this  character  is  of  recent  growth  in  this  country, 
the  end  sought  to  be  accomplished  is  thoroughly  well  understood.  The  object 
and  purpose  of  such  legislation  has  been  twofold:  First,  in  cases  of  injury 
to  employes  to  provide  a  speedy  and  inexpensive  method  by  which  com- 
pensation, might  be  made  to  them  or  those  dependent  upon  them  without  the 
delay  of  long  and  tedious  litigation,  and  at  a  minimum  of  costs ;  and,  second- 
ly, to  substitute  a  more  uniform  scale  of  compensation  in  cases  of  accident 
than  could  be  obtained  from  the  varying  and  often  widely  divergent  estimates 
of  juries,  and  also  to  avoid  the  application  of  certain  well-established  rules 
of  law,  which  in  some  cases  have  seemed  to  be  harsh  in  their  operation.  Bren- 
ner.v.  Brenner,  127  Md.  189,  96  Atl.  287. 

"Injustice  to  the  laborer  and  hardships  to  the  industries  of  the  state  alike 
called  for  some  plan  that  would  relieve  the  servant  of  the  necessity  of  pur- 
suing his  remedy  for  compensation  in  the  courts,  and  the  master  of  the  har- 
assments,  vexations,  and  uncertainties  attending  the  trial  of  all  cases  where 
men  are  called  upon  to  defend  against  the  charge  of  negligence.    Clearly  the 


13  ACTS  IN   GENERAL  §    2 

regulated  as  to  amount  by  fixed  rules  and  schedules.^^  A  full  ap- 
preciation of  the  scope  of  this  legislation  cannot  be  obtained  with- 

purpose  of  the  Act  was  to  end  all  litigation  growing  out  of,  incident  to,  or  re- 
sulting from  the  primary  injury,  and  in  lieu  thereof  give  to  the  workman  one 
recovery  in  the  way  of  certain  compensation,  and  to  make  the  charge  upon 
the  contributing  industries  alone.  The  Act  is  grounded  in  a  humanitarian 
impulse.  It  takes  account  only  of  the  place  of  injury  and  the  extent  of  the 
disability,  and  compensates  for  the  conditions  resulting  from  the  primary  in- 
jury, or,  in  other  words,  it  will  reject  no  element  of  disability  if  it  has  accrued 
in  consequence  of  the  first  hurt,  or  as  an  aggravation  arising  from  any  col- 
lateral contributing  cause.  The  Legislature  knew  that  workmen  had  been 
compelled  to  meet  the  defense  of  nonliability  on  the  part  of  the  employer,  who 
might  plead  the  malpractice  of  the  attending  surgeon  as  a  bar  to  recovery, 
and  if  they  pursued  their  remedy  against  the  malpractitioner,  they  might  be 
subject  to  the  hazard. of  expert  opinion  evidence,  from  which  a  jury  may  gen- 
erally find  a  sufficient  warrant  to  follow  its  own  inclination.  There  was  no 
assurance  of  recovery  against  either  party,  or  against  either  offender.  On 
the  other  hand,  the  employer  and, faithful  and  competent  physicians  and  sur- 
geons had  been  put  to  the  hazard  of  ill-founded  suits.  The  deserving  had  gone 
from  the  courts,  their  wrongs  unredressed.  The  undeserving  had  taken  that 
which,  in  good  conscience,  was  not  their  own,  and  to  cure  all  the  Legislature 
passed  the  Industrial  Insurance  Law  covering  'all  phases  of  the  premises.'  " 
Ross  V.  Erickson  Const.  Co.,  89  Wash.  6.34,  155  Pac.  153. 

"As  the  citizens  of  the  state  have  become  familiar  with  the  pui^poses  and 
actual  operation  of  the  compensation  law  during  the  past  year,  the  co-opera- 
tion and  assistance  received  by  the  commission  has  increased  correspond- 
ingly. Employers  have  been  relieved  of  the  worry  and  cost  of  litigation,  and 
have  had  the  satisfaction  of  knowing  that  the  money  spent  for  compensation 
was  being  received  by  the  workmen  who  were  injured,  rather  than  going  for 
attorney  fees,  court  costs,  and  the  expenses  and  profits  of  the  liability  insur- 
ance companies.  On  the  other  hand,  injured  workmen  received  compensation 
as  promptly  as  possible  and  in  a  large  number  of  eases  where  the  employer 
would  not  have  been  liable  under  the  former  statutes."  First  Annual  Rep. 
Or.  Indus.  Ace.  Com.  June  30,  1915,  p.  24.  "Although  4,546  accidents  were 
reported  to  the  Commission  during  the  12  months,  only  in  a  few  instances  did 

15  The  object  in  case  of  disability  is  to  provide  to  workmen  who  have  sus- 
tained injuries  in  their  respective  employments  a  compensation  which  is  based 
on  fixed  schedules.    Nitram  Co.  v.  Creagh,  84  N,  J.  Law,  243,  86  Atl.  435. 

The  general  purpose  of  the  Illinois  Act  is  to  provide  a  method  by  which  in- 
juries received  by  employes  in  certain  classes  of  occupations  may  be  quickly 
adjusted,  so  that  something  shall  be  received  according  to  fixed  rules  for  de- 
termining compensation.  Victor  Chemical  Works  v.  Industrial  Board  of  Il- 
linois (111.)  113  N.  E.  173. 


§  3  workmen's  compensation  14 

out  also  taking  into  consideration  the  fact  that  the  state  has  an 
interest  in  compensation  being  awarded  that  the  support  of  the 
workman  or  his  dependents  may  not  become  a  public  charge.^® 

§  3.     Report  of  Wainwright  Commission 

In  its  report  to  the  New  York  Legislature,  the  reasons  for  the 
departure  from  long-established  custom  in  the  enactment  of  com- 
pensation laws  are  summarized  by  the  Wainwright  Commission  as 
follows :  "First,  that  the  present  system  in  New  York  rests  on  a 
basis  that  is  economically  unwise  and  unfair,  and  that  in  operation 
it  is  wasteful,  uncertain,  and  productive  of  antagonism  between 
workmen  and  employers.  Second,  that  it  is  satisfactory  to  none, 
and  tolerable  only  to  those  employers  and  workmen  who  practically 
disregard  their  legal  rights  and  obligations,  and  fairly  share  the 
burden  of  accidents  in  industries.  Third,  that  the  evils  of  the 
system  are  most  marked  in  hazardous  employments,  where  the 
trade  risk  is  high  and  serious  accidents  frequent.  Fourth,  that,  as 
matter  of  fact,  workmen  in  the  dangerous  trades  do  not,  and  prac- 
tically cannot,  provide  for  themselves  adequate  accident  insur- 
ance, and  therefore  the  burden  of  serious  accidents  falls  on  the 
workmen  least  able  to  bear  it,  and  brings  many  of  them  and  their 

workmen  ignore  the  Compensation  Act  and  bring  suit  against  their  employers. 
In  several  cases  workmen  instituted  suit,  under  the  provisions  of  section  22, 
alleging  they  were  injured  'from  the  deliberate  intention  of  the  employer  to  pro- 
duce such  injury.'  In  two  instances,  also,  workmen  brought  action  after  the 
Commission  had  paid  the  full  amount  of  benefits  provided  by  the  law.  This 
litigation,  however,  has  so  far  been  unsuccessful.  The  fact  that  suit  had 
been  instituted  by  two  workmen  after  receiving  the  benefits  provided  by  the 
law  on  account  of  their  injuries,  and  after  executing  final  settlement  vouch- 
ers in  favor  of  the  accident  fund,  created  speculation  as  to  the  motives  behind 
this  litigation.  This  was,  however,  made  plain  later,  when  definite  informa- 
tion came  to  the  Commission  that  solicitors  were  visiting  injured  workmen 
at  the  hospital,  offering  varying  amounts  per  week,  if  the  workman  would 
sign  a  contingent  fee  contract  authorizing  suit  to  be  brought  against  the  em- 
ployer."   Id,  p.  19. 

16  Gerber  v.  Central  Council  of  Stockton,  2  Cal.  I.  A.  C.  Dec.  580. 


15  ACTS  IN  GENERAL  §   4 

families  to  want."  ^^  Tliis  indictment  of  the  old  system  is  followed 
by  a  statement  of  the  anticipated  benefits  under  the  new  statute 
as  follows:  "These  results  can,  we  think,  be  best  avoided  by 
compelling  the  employer  to  share  the  accident  burden  in  intrin- 
sically dangerous  trades,  since  by  fixing  the  price  of  his  product 
the  shock  of  the  accident  may  be  borne  by  the  community.  In 
those  employments  which  have  not  so  great  an  element  of  danger, 
in  which,  speaking  generally,  there  is  no  such  imperative  demand 
for  the  exercise  of  the  police  power  of  the  state  for  the  safeguard- 
ing of  its  workers  from  destitution  and  its  consequences,  we  recom- 
mend, as  the  first  step  in  this  change  of  system,  such  amendment 
of  the  present  law  as  will  do  away  with  some  of  its  unfairness  in 
theory  and  practice,  and  increase  the  workmen's  chance  of  re- 
covery under  the  law.  With  such  changes  in  the  law  we  couple 
an  elective  plan  of  compensation,  which,  if  generally  adopted,  will 
do  away  with  many  of  the  evils  of  the  present  system.  Its  adop- 
tion will,  we  believe,  be  profitable  to  both  employer  and  employe, 
and  prove  to  be  the  simplest  way  for  the  state  to  change  its  system 
of  liability  without  disturbance  of  industrial  conditions.  Not  the 
least  of  the  motives  moving  us  is  the  hope  that  by  these  means  a 
source  of  antagonism  between  employer  and  employed,  pregnant 
with  danger  for  the  state,  may  be  eliminated."  ^* 

§  4.     Scope  of  legislation  and  change  effected 

The  change  made  by  this  legislation  is  radical,  even  revolution- 
ary,^^ and  works  fundamental  changes  in  the  familiar  principles 

17  Ives  V.  South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  L.  R.  A. 
(N.  S.)  162,  Ann.  Cas.  1912B,  156. 

18  Id. ;   In  re  Rheinwald,  168  App.  Div.  425,  153  N.  Y.  Supp.  598. 

19  Ives  V.  South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  L.  R.  A. 
(N.  S.)  162,  Ann.  Cas.  1912B,  156.  This  Act  must  in  fairness  be  deemed  to 
have  been  enacted  in  furtherance  of  a  legislative  determination,  enforced  by 
explicit  mandate  of  the  people  through  amendment  of  the  state  Constitution, 
that  a  new  and  different  scheme  and  basis  of  indemnity  for  industrial  acci- 


§  4  workmen's  compensation  16 

governing  the  employer's  heretofore  existing  liability  for  negli- 
gence.^^''  In  place  of  the  liability  in  an  action  for  damages,  in 
which  the  employer  was  liable  only  in  case  he  or  his  representative 
was  negligent  or  at  fault,  a  liability  is  imposed  on  the  employer 
for  any  accidental  injuries  to  his  employes  arising  out  of  the 
employment — a  liability  which,  as  a  general  rule,  is  not  conditioned 
on  the  employer's  negligence  or  the  employe's  want  of  negligence. 
The  Compensation  Acts  ordinarily  require  that  the  injuries  shall 
not  have  been  caused  by  the  employe's  intoxication  or  willful  mis- 
conduct, and  abrogate  the  common-law  doctrines  of  assumption 
of  risk,  contributory  negligence,  and  negligence  of  fellow  servant.^^ 

dents  should  be  adopted  in  this  state,  in  the  light  of  the  social  experience  of 
other  commonwealths  and  countries.  In  re  Rheinwald,  168  App.  Div.  425, 
153  N.  Y.  Supp.  598. 

2  0  Mackiu  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49. 

Under  the  common  law  the  burden  of  industrial  accidents  fell  on  the 
workman,  where  no  fault  was  attributable  to  either  employer  or  workman. 
Under  the  Compensation  Acts  it  falls  principally  on  the  employer.  Western 
Indemnity  Co.  v.  Pillsbury,  170  Cal.  68G,  151  Pac.  398. 

21  Id. 

Compensation  for  injury,  regardless  of  fault,  is  the  basis  of  the  Compen- 
sation Acts.    Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245. 

The  policy  of  the  state  of  Illinois  is  to  be  found  in  the  Compensation  Act, 
and  requires  payment  to  employes  in  case  of  accident  grov.iug  out  of  and  in  the 
course  of  the  employment,  without  reference  to  the  doctrine  of  negligence. 
Blauvelt  v.  Chicago  &  A.  R.  Co.,  Bulletin  No.  1,  111.,  p.  181.  The  Compen- 
sation Act  applies  to  no  individual  or  corporation  on  the  doctrine  of  tort, 
but  it  applies  only  by  reason  of  its  terms,  which  make  it  so.  Radigen  v.  San- 
itary Dist.  of  Chicago,  Bulletin  No.  1,  111.,  p.  138. 

Recovery  of  compensation  under  the  Michigan  Act  does  not  depend  upon, 
and  is  not  affected  by,  the  employer's  negligence.  Grand  Trunk  Ry.  Co.  of 
Canada  v.  Knapp  (C.  C.  A.)  233  Fed.  950. 

The  Compensation  Act  was  intended  to  relieve  against  the  hardships  re- 
sulting from  many  unfortunate  accidents  which  do  take  place  in  this  age  of 
the  extensive  use  of  complicated  machines  and  appliances  and  of  great  en- 
terprises necessitating  the  indiscriminate  employment  of  large  forces  of  labor- 
ers and  mechanics.  All  question  of  the  employer's  fault  or  negligence  is 
eliminated  from  cases  arising  under  this  Act  The  intention  was  to  com- 
pensate all  accidental  injuries  growing  out  of  and  received  in  the  service. 


17  ACTS  IN  GENERAL  §   4 

The  right  to  be  compensated  for  an  injury  ordinarily  has  about 
it  no  element  of  pension,  rebate,  bounty,  or  charity.-^     Nor  does  it 

except  those  intentionally  self-inflicted  or  due  to  intoxication.  State  Du- 
luth  Brewing  &  Malting  Co.  v.  District  Court,  129  Minn.  176,  151  N.  W.  912. 

The  fundamental  difference  between  the  conception  of  liability  and  com- 
pensation is  found  in  the  presence  in  the  one,  and  the  absence  from  the  other, 
of  the  element  of  actionable  wrong.  The  common  law  and  liability  statutes  fur- 
nished an  uncertain  measure  of  relief  to  the  limited  number  of  workmen  who 
could  trace  their  injuries  proximately  to  the  master's  negligence.  Compen- 
sation laws  proceed  upon  the  theory  that  the  injured  workingman  is  entitled 
to  pecuniary  relief  from  the  distress  caused  by  his  injury,  as  a  matter  of 
right,  unless  his  own  willful  act  is  the  proximate  cause,  and  that  it  is  wholly 
immaterial  whether  the  injury  can  be  traced  to  the  negligence  of  the  master, 
the  negligence  of  the  injured  employe  or  a  fellow  servant,  or  whether  it  re- 
sults from  an  act  of  God,  the  public  enemy,  an  unavoidable  accident,  or  a  mere 
hazard  of  the  business  which  may  or  may  not  be  subject  to  more  exact  classi- 
fication; that  his  compensation  shall  be  certain,  limited  by  the  impairment 
of  his  earning  capacity,  proportioned  to  his  wages,  and  not  dependent  upon 
the  skill  or  eloquence  of  counsel  or  the  whun  or  caprice  of  a  jury;  that 
as  between  workmen  of  the  same  class  who  suffer  like  injuries,  each  shall  re- 
ceive the  same  compensation,  and  that,  too,  without  the  economic  waste  inci- 
dent to  protracted  litigation  and  without  reference  to  the  fact  that  the  injury 
to  the  one  may  have  been  occasioned  by  the  negligence  of  the  master,  and  to 
the  other  by  reason  of  his  own  fault.  Lewis  and  Clark  County  v.  Indus.  Aca 
Board  (Mont.)  155  Pac.  268. 

The  employer  is  responsible  to  the  employ^  for  every  accident  in  the  course 
of  the  employment,  whether  the  employer  is  at  fault  or  not,  and  whether 
the  employe  is  at  fault  or  not,  except  when  the  fault  of  the  employe  is  so 
grave  as  to  constitute  serious  and  willful  misconduct  on  his  part.  Ives  v. 
South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  L.  R.  A.  (N.  S.)  1G2, 
Ann.  Cas.  1912B,  156.  Neither  the  doctrine  of  respondeat  superior  nor  the 
rule  relative  to  the  employer's  liability  for  negligence  controls  in  proceedings 
for  compensation.  In  re  State  Workmen's  Compensation  Com'n,  112  N.  E. 
571,  218  N.  Y.  59.  Compensation  is  given  without  regard  to  the  fault  of  the 
master  at  common  law  or  under  the  Employers'  Liability  Acts.  In  re  Heitz, 
218  N.  Y.  148,  112  N.  E.  750,  affirming  (Sup.)  155  N.  Y.  Supp.  1112;  Linde- 
bauer  v.  Weiner,  94  Misc.  Rep.  612,  159  N.  Y.  Supp.  987.    The  Act  was  passed 


22  State  V.  Industrial  Commission,  92  Ohio  St.  434,  111  N.  E.  299.  The 
words  "insurance  fund,"  "compensation,"  "award,"  and  "commutation"  all 
negative  the  idea  of  pension  or  rebate  of  any  kind.    Id. 

This  legislation  is  not  a  substitute  for  disability  or  old  age  pensions.  In 
re  Madden,  222  Mass.  487,  111  N.  E.  379. 

HON.COMP. — 2 


§  4  workmen's  compensation  18 

make  the  employer  an  insurer  of  the  Hfe  or  health  of  the  employe 
during  the  hours  of  labor.^^  Under  the  Washington  Act,  how- 
to  benefit  workmen  in  liazardous  employments  wlio  were  without  a  legal  rem- 
edy. In  re  Heitz,  supra.  The  plain  purpose  of  Laws  1913,  c.  816,  was  to  pro- 
vide compensation  to  an  employ^  for  an  accidental  personal  injury,  and  to  the 
family  of  an  employ§  who  has  suffered  death  as  the  result  of  such  injury 
sustained  by  the  employe  arising  out  of  and  in  the  course  of  his  employment 
"without  regard  to  fault  as  a  cause  of  such  injury,"  with  the  two  specified 
exceptions  of  "where  the  injury  is  occasioned  by  the  willful  intention  of  the 
injured  employe  to  bring  about  the  injury  or  death  of  himself  or  another,  or 
where  the  injury  results  wholly  from  the  intoxication  of  the  injured  employe 
while  on  duty."  Kenny  v.  Union  Ry.  Co.,  166  App.  Div.  497,  152  N.  Y.  Supp. 
117.  The  radical  character  of  this  legislation  is  revealed  by  contrasting  it 
with  the  rule  of  the  common  law,  under  which  the  employer  is  liable  for  in- 
juries to  his  employe  only  when  the  employer  is  guilty  of  some  act  or  acts  of 
negligence  which  caused  the  occurrence  out  of  which  the  injuries  arise,  and 
then  only  when  the  employe  is  shown  to  be  free  from  any  negligence  which 
contributes  to  the  occurrence.  Under  the  common  law  an  employer  is  liable 
to  his  injured  employ§  only  when  the  employer  is  at  fault  and  the  employe 
is  free  from  fault ;  while  under  the  new  statute  the  employer  is  liable,  al- 
though not  at  fault,  even  when  the  employ^  is  at  fault,  unless  this  latter  fault 
amounts  to  serious  and  willful  misconduct.  Ives  v.  South  Buffalo  Ry.  Co., 
supra.  The  new  statute  is  totally  at  variance  with  the  common-law  theory  of 
the  employer's  liability.  Fault  on  his  part  is  no  longer  an  element  of  the 
employe's  right  of  action.  This  change  necessarily  and  logically  carries  with 
it  the  abrogation  of  the  "fellow  servant"  doctrine,  the  "contributory  negli- 
gence"' rule,  and  the  law  relating  to  the  employe's  assumption  of  risks.  There 
can  be  no  doubt  that  the  first  two  of  these  are  subjects  clearly  and  fully  with- 
in the  scope  of  legislative  power,  and  that,  as  to  the  third,  this  power  is  lim- 
ited to  some  extent  by  constitutional  provisions.  The  "fellow  servant"  rule 
is  one  of  judicial  origin,  ingrafted  upon  the  common  law  for  the  protection 
of  the  master  against  the  consequences  of  negligence  in  which  he  has  no 
part.  In  its  early  application  to  simple  industrial  conditions,  it  had  the  sup- 
port of  both  reason  and  justice.  By  degrees  it  was  extended  until  it  became 
evident  that,  under  the  enormous  expansion  and  infinite  complexity  of  our 
modern  industrial  conditions,  the  rule  gave  opportunity,  in  many  instances, 
for  harsh  Hnd  technical  defenses.  In  recent  years  it  has  been  much  restrict- 
ed in  its  application  to  large  corporate  and  industrial  enterprises,  and  still 
more  recently  it  has  been  modified,  and  to  some  extent  abolished,  by  the  La- 
bor Law  and  the  Employers'  Liability  Act.  The  law  of  contributory  negligence 
has  the  support  of  reason  in  any  system  of  jurisprudence  in  vrhich  the  fault  of 
one  is  the  basis  of  liability  for  injury  to  another.    Under  such  a  system  it  is 

23  Collins  V.  Brooklyn  Union  Gas  Co.  (Sup.)  156  N.  Y.  Supp.  957. 


19  ACTS   IN   GENERAL  §    4 

ever,  the  workman  takes  a  kind  of  pension  in  exchange  for  absolute 
insurance,  while  on  his  employer's  premises.^*  The  Oregon  Act, 
following  the  lead  of  Washington,  has  also  adopted  in  general  a 

at  least  logical  to  hold  that  one  who  is  himself  to  blame  for  his  injuries 
should  not  be  permitted  to  entail  the  consequences  upon  another  who  has  not 
been  negligent  at  all,  or  whose  negligence  would  not  have  caused  the  injury 
if  the  one  injured  had  been  free  from  fault.  It  may  be  admitted  that  the  rea- 
son of  the  rule  is  often  lost  sight  of  in  the  effort  to  apply  it  to  a  great  variety 
of  practical  conditions,  and  that  its  efficacy  as  a  rule  of  justice  is  much  im- 
paired by  the  lack  of  uniformity  in  its  administration.    Id. 

In  the  enactment  of  this  new  law,  the  Legislature  declared  it  to  be  the  pol- 
icy of  this  state  that  every  hazardous  industry  within  the  purview  of  this 
Act  should  bear  the  burden  arising  out  of  injuries  to  its  employes.  It  was 
the  further  policy  of  the  state  to  do  away  with  the  recognized  evils  attach- 
ing to  the  remedies  under  existing  forms  of  law  and  to  substitute  a  new  rem- 
edy that  should  be  ample,  full,  and  complete,  reaching  every  injury  sustained 
by  any  workman  while  employed  in  any  such  industry,  regardless  of  the  cause 
of  the  injury  or  the  negligence  to  which  it  might  be  attributed.  Peet  v.  Mills, 
76  Wash.  437,  13G  Pac.  6S5,  L.  R.  A.  1916A,  35S,  Ann.  Cas.  1915D,  154.  The 
evident  purpose  and  intent  of  the  Act  is  to  provide  compensation  for  work- 
men injured  in  hazardous  undertakings,  reaching  "every  injury  sustained  by 
a  workman  engaged  in  any  such  industry,  and  make  a  sure  and  certain  award 
therefor,  bearing  a  just  proportion  to  the  loss  sustained,  regardless  of  the 
manner  in  which  the  injury  was  received,"  and  that  the  Act  should  be  lib- 
erally interpreted.  Zappala  v.  Industrial  Ins.  Com.,  82  Wash.  314,  144  Pac. 
54,  L.  R.  A.  191GA,  235;  State  v.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37 
L.  R.  A.  (N.  S.)  466.  The  state,  in  the  exercise  of  its  sovereign  power,  recog- 
nized that  the  welfare  of  the  whole  people  depends  "upon  its  industries,  and 
even  more  upon  its  wage-workers,"  and  accordingly  passed  a  law  which  was 
designed  to  compensate  an  injured  workman,  without  reference  to  the  man- 
ner of  his  injury,'  or  the  questions  of  negligence,  contributory  negligence, 
assumption  of  risk,  or  fellow  servant.  The  state  declared  its  power  in  the 
following  comprehensive  language:  "The  state  of  Washington,  therefore,  ex- 
ercising herein  its  police  and  sovereign  power,  declares  that  all  phases  of 
the  premises  are  witii'Jrawn  from  private  controversy,  and  sure  and  certain 
relief  for  workmen,  injured  in  extrahazardous  work,  and  their  families  and 
dependents  is  hereby  provided  regardless  of  questions  of  fault  and  to  the 
exclusion  of  every  other  remedy,  proceeding  or  compensation,  except  as  oth- 
erwise provided  in  this  act ;  and  to  that  end  all  civil  actions  and  civil  causes 
of  action  for  such  personal  injuries  and  all  jurisdiction  of  the  courts  of  the 


2  4  Stertz  V.  Industrial  Insurance  Commission  of  Washington   (Wash.)  158 
Pac.  256. 


§  4  workmen's  compensation  20 

pension  system  of  compensation  which  is  essentially  different  from 
a  system  basing  awards  on  a  percentage  of  the  wages,  as  is  done 
in  most  of  the  other  states.  A  pure  pension  system  is  intended  to 
pay  compensation  from  the  standpoint  of  public  policy,  larger 
amounts  being  given  to  married  men  and  men  with  families  than 
to  others,  while  a  system  based  on  a  percentage  of  wage  is  intend- 
ed to  remunerate  the  injured  employe  or  his  dependents  in  propor- 
tion to  the  economic  loss  suffered. ^°    Many  of  the  Acts  provide  in 

state  over  such  causes  are  hereby  abolished,  except  as  in  this  act  provided." 
(Sess.  Laws  Wash.  1911,  p.  345)  Ross  v.  Erickson  Const.  Co.,  89  Wash.  634,  155 
Pac.  153.  Compensation  is  payable  under  the  Washington  Act  whenever 
four  facts  appear,  namely:  (1)  The  business  of  the  employer  was  within  the 
scope  of  the  Act;  (2)  the  employe  was  injured;  (3)  such  injury  occurred  out 
of  and  incidental  to  his  employment;  (4)  such  injury  was  not  caused  by 
willful  misconduct.  It  makes  no  difference  whose  fault  it  was  or  who  was 
to  blame.  It  is  sufficient  that  the  industry  caused  the  injury.  (Wk,  Comp. 
Act  Wash.  §  5)  Rulings  of  Wash.  Indus.  Ace.  Com.  1915,  p.  14. 

Where  the  employer  has  not  elected  to  pay  into  the  compensation  fund  pro- 
vided for  by  the  West  Virginia  Act,  it  is  not  necessary,  as  it  was  at  common 
law,  to  allege  that  the  master's  negligence  was  the  proximate  cause  of  the 
injury.  (Wk.  Comp.  Act,  §  26)  Watts  v.  Ohio  Valley  Electric  Ry.  Co.  (W.  Va.) 
8S  S.  E.  659.  An  employer  corporation  which  has  not  elected  to  pay  premiums 
is  liable  not  only  for  its  own  negligence,  but  for  the  negligence  of  its  officers, 
agents,  and  other  employes.    Id. 

It  is  manifest  from  their  context  that  the  Legislature  intended  by  St.  1911, 
§§  2394—1  to  2394 — 71,  that  the  employer  should  be  liable  for  all  injuries  re- 
sulting from  unsafety  in  employment,  as  regards  places,  safety  devices,  and 
safeguards,  and  to  methods  and  processes  of  conducting  their  business.  The 
clear  implications  are  that  the  risks  and  hazard  of  an  employment  result- 
ing from  the  failure  of  the  master  to  comply  with  these  requirements  are  risks 
and  hazards  incident  to  the  employe's  duties,  though  they  may  be  of  an  obvious 
nature.  The  Legislature  had  a  right  to  take  into  consideration  that  employes 
under  the  stress  and  condition  of  existing  industrial  life  had  but  little  choice 
but  to  refuse  the  employment  offered  them  under  such  conditions  of  danger 
as  the  employers  saw  fit  to  adopt,  and  deemed  it  good  policy  to  impose  the 
burden  of  all  the  risks  and  hazards  attending  such  business  methods  and  pro- 
cesses on  the  employer,  though  they  were  open  and  obvious  to  an  employ§ 
in  the  course  of  his  employment.  Besnys  v.  Herman  Zohrlaut  Leather  Co., 
157  Wis.  203,  147  N.  W.  37. 

2  5  First  Annual  Rep.  Or.  Indus.  Ace.  Com.  June  30,  1915,  p.  42. 


21  ACTS  IN  GENERAL  §    5 

different  divisions  two  entirely  different  schemes — one  regulative 
of  the  common-law  liability  for  negligence,  the  other  compensatory 
in  nature  and  purely  the  creature  of  statute, ^^  One  very  important, 
probably  the  most  important,  test  of  the  success  of  an  Act,  is 
the  extent  to  which  preventable  accidents  decrease  in  the  industries 
subject  to  it.^'^ 

§  5.     Insurance  features 

While  the  principles  of  workmen's  compensation  have  been  for- 
mally established  in  a  large  number  of  states,  as  already  men- 
tioned, a  controversy  still  exists  as  to  the  best  method  of  insur- 
ing  compensation   payments.      Several   Acts   leave   the   employer 

26  Sexton  V.  Newark  District  Telegraph  Co.,  84  N.  J.  Law,  85,  86  Atl.  451. 
The  Act  is  separated  into  two  divisions  designated  as  part  1  and  part  2.    The 

provisions  of  part  2  apply  only  in  the  event  that  both  employer  and  employe 
elect  to  become  subject  thereto.  If  either  or  both  elect  not  to  become  subject 
to  part  2,  the  provisions  of  part  1  apply.  Mathison  v.  Minneapolis  St.  Ry. 
Co.,  126  Minn.  286,  148  N.  W.  71. 

27  First  Annual  Rep.  Or.  Indus.  Ace.  Com.  June  30,  1915,  pp.  23,  24.  The  Leg- 
islature substituted  for  former  section  25  the  requirement  that  the  Commis- 
sion shall  investigate  all  cases  where  they  have  reason  to  believe  that  em- 
ployers fail  to  observe  the  safety  statutes,  and,  where  violations  are  found, 
request  the  prosecuting  attorney  to  prosecute  the  offending  employer.  This 
amendment  has  the  effect  of  making  compensation  the  only  remedy  to  an 
injured  workman,  and  also  renders  available  in  the  work  of  accident  pre- 
vention the  information  contained  in  the  reports  of  accidents  forwarded  to 
the  Commission.     Id. 

"Since  the  enactment  of  the  Washington  Act,  safety  committees  have  been 
organized  and  are  now  in  operation  in  a  majority  of  the  mills,  factories,  and 
workshops  throughout  the  state.  The  formation  of  corporate  or  voluntary  as- 
sociations, by  members  of  the  compulsory  classes  of  employers,  to  study  meth- 
ods and  appliances  for  accident  prevention  and  to  reduce  the  insurance  cost 
under  the  Washington  Act  is  urged,  and  the  co-operation  of  the  Commission 
tendered."  (Wk.  Comp.  Act  Wash.  §  30)  Rulings  Wash.  Indus.  Ins.  Com.  1915, 
p.  28,  It  is  contemplated  by  the  Washington  Act  that  Class  Bulletins  to  em- 
phasize accident  prevention  in  various  industries  may  be  issued  from  time  to 
time;  and  Safety  Regulations  promulgated  after  consideration  in  trade  con- 
ventions, violation  of  which  may  automatically  increase  the  premium  rate  of 
the  offending  employer.    (Wk.  Comp.  Act  Wash.  §  24)  Id.  p.  25. 


§  5  workmen's  compensation  22 

free  to  insure  with  stock  companies,  mutual  companies,  state  in- 
surance funds,  or,  if  he  so  desires,  to  carry  no  insurance.  Under 
other  Acts  insurance  is  restricted  to  the  state  accident  fund.  Ap- 
parently it  is  yet  to  be  demonstrated  b}^  experience  which  is  the 
better  method.  The  Oregon  Industrial  Accident  Commission,  after 
calling  attention  to  the  fact  that  a  large  proportion  of  the  premiums 
is  required  by  stock  companies  to  cover  expenses  and  profits,  con- 
tends, in  its  first  annual  report,  that  a  state  compensation  fund  ad- 
ministered with  efficiency  and  reasonable  econoni}^  will  best  stand 
the  test  of  experienced^  The  1915  session  of  the  Legislature  of  Ore- 
gon amended  the  Act  of  that  state  in  several  important  partic- 
ulars. Where  formerly  there  had  been  but  two  insurance  rates 
for  the  emplo3'er,  the  law  as  amended  contains  a  difterential  clas- 
sification of  rates.  In  adopting  the  new  schedule  it  was  the  pur- 
pose to  provide  rates  that  would  closely  correspond  to  the  hazard 
of  the  various  employments.  The  principle  embodied  in  the  orig- 
inal Act,  recognizing  the  right  of  the  individual  employer  to  a 
reduction  in  the  cost  of  his  insurance  for  a  favorable  accident  expe- 
rience, is  retained  in  the  amended  law,  and,  apparentl}^,  is  potent 
in  lessening  the  number  of  preventable  accidents.  In  substance,  the 
amendment  makes  possible  a  reduction  in  rate  of  10  per  cent,  to 
the  individual  employer,  during  each  of  the  second  and  third  years 
he  is  subject  to  the  Act,  where  the  Commission  pays  out  on  account 
of  accidents  occurring  to  his  workmen,  not  to  exceed  50  per  cent,  of 
his  contribution  to  the  fund  during  the  preceding  year.  As  a  re- 
sult, a  very  large  proportion  of  the  employers  subject  to  the  law 
since  July  1,  1914,  enjoyed  this  reduction  in  payment  for  the  second 
year.^**  Strong  claims  are  made  for  the  efficiency  and  economy  of 
the  plan  of  the  Acts  of  Washington  and  Oregon  and  for  the  stabil- 
ity of  the  protection  afforded  by  these  Acts.^° 

2  8  First  Annual  Rep.  Or.  Indus.  Ace.  Com.  June  30,  1915,  p.  6. 

2  9  Id.  p.  22. 

3  0  "Aside  from  the  attitude  maintained  in  the  settlement  of  claims,  an  im- 
portant phase  of  the  compensation  system  is  the  cost  of  administration.     A 


23  ACTS   IN   GENERAL  §    5 

tabulation  of  the  experience  of  all  companies  writing  compensation  insurance 
in  the  state  of  Wisconsin  during  the  year  1914  has  been  prepared  by  the  com- 
mission of  that  state.  It  shows  employers  insuring  with  stock  companies 
were  required  to  pay  an  average  of  ?2.07  to  provide  the  injured  workmen  with 
$1  benefits.  The  experience  of  the  insurance  company  which,  through  its 
agents,  has  been  most  effective  in  opposition  to  the  Oregon  Act,  charged  the 
employers  of  Wisconsin  $2.63  for  every  $1  paid  out  in  1914  on  account  of  ben- 
efits to  injured  workmen.  The  tables  contained  in  another  part  of  this  report 
will  show  that  in  Oregon  during  the  first  12  months  the  law  has  been  in  oper 
ation,  only  $1,131/3  has  been  required  to  place  $1  in  benefits  in  the  hands  of 
injured  workmen.  This  difference  in  cost  is  emphasized  when  it  is  recalled 
that  Wisconsin  has  an  area  of  but  56,066  square  miles,  a  population  of  2,- 
333,860,  and  an  average  of  42.2  people  to  the  square  mile,  while  Oregon,  with 
its  96,699  square  miles  of  territory,  672,765  of  population,  and  an  average  of 
7  people  to  the  square  mile,  presents  conditions  under  which  the  cost  might 
properly  be  expected  to  be  much  greater."  Id.  p.  7.  "Of  vital  importance 
to  every  citizen  of  the  state  is  the  method  provided  for  insuring  the  deferred 
monthly  payments  in  event  of  injury.  Some  Compensation  Acts  place  di- 
rectly upon  the  employer  the  obligation  to  pay  compensation  to  his  injured 
workmen.  He  is  free  to  insure  against  this  liability  or  to  carry  his  own  risk. 
If  he  he  a  man  of  limited  means,  injured  workmen  or  their  dependents  are 
left  without  recourse  in  the  event  of  his  insolvency.  This  has  resulted  in 
a  demand  for  a  method  which  will  with  greater  certainty  insui-e  these  future 
payments,  and  in  a  number  of  states,  including  Oregon,  this  has  been  met  by 
the  creation  of  an  insurance  fund,  administered  by  a  Commission,  and  with 
the  state  treasurer  as  custodian.  Under  the  Oregon  law  the  future  payments 
to  workmen  who  are  permanently  disabled  and  to  dependents  in  fatal  cases 
are  provided  for  by  setting  aside  in  each  case  a  sum  which,  together  with  in- 
terest earnings  estimated  at  4  per  cent,  per  annum,  will  be  sufficient  to  meet 
these  deferred  payments."    Id.  p.  10. 


workmen's  compensation  24 

ARTICLE  II 

CONSTRUCTION  AND  OPERATION 


Section 

6. 

Construction. 

7. 

Retroactive  operation. 

8. 

Territorial  operation. 

9. 

Admiralty  jurisdiction. 

10. 

Interstate  commerce. 

11. 

Administration. 

Construction 

§  5. 

Where  any  other  construction  is  reasonably  possible,  a  Com- 
pensation Act  should  not  be  given  a  construction  which  will  make 
it  unconstitutional,  or  cast  doubt  on  its  constitutionality.^^  It 
should,  if  possible,  be  so  construed  as  to  give  effect  to  every  portion 
of  it.^-  Where  two  sections  are  so  inconsistent  that  they  cannot 
be  reconciled,  the  one  must  stand  which  best  conforms  to  the  in- 
tent and  policy  of  the  statute,  and  where  one  section  so  conforms 
it  is  not  to  be  rendered  nugatory  by  an  inconsistent  provision, 
though  found  in  a  later  section,  which  does  not  so  conform.^^  Con- 
si  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037;  Victor  Chemi- 
cal Works  V.  Industrial  Board  of  Illinois,  274  111.  11,  113  N.  E.  173;  Behringer 
V.  Inspiration  Consol.  Copper  Co.,  17  Ariz.  232,  149  Pac.  1065;  Consolidated 
Arizona  Smelting  Co.  v.  Ujack,  15  Ariz.  382,  139  Pac.  465. 

Where  the  constitutionality  of  a  law  is  involved,  every  presumption  must 
be  indulged  and  every  reasonable  doubt  resolved  in  favor  of  its  validity.  It 
is  a  familiar  doctrine  that  laws  will  not  be  declared  unconstitutional  unless 
it  is  clearly  proved,  beyond  a  reasonable  doubt,  that  the  requirements  of  the 
organic  law  have  not  been  observed.  People  v.  Brady,  268  111.  192,  108  N.  E. 
1009;  People  v.  Henning  Co.,  2G0  111.  554,  103  N.  E.  530,  49  L.  R.  A.  (N.  S.) 
1206;  Home  Ins.  Co.  v.  Swigert,  104  111.  653;  Evanhoff  v.  State  Industrial 
Accident  Commission,  78  Or.  503,  154  Pac.  106.  This  same  rule  applies  to  the 
constitutionality  of  a  law  when  any  defect  is  claimed  in  its  passage.  Drago- 
vish  V.  Iroquois  Iron  Co.,  2C9  111.  478,  109  N.  E.  999. 

3  2  State  ex  rel.  Maryland  Casualty  Co.  v.  District  Court  (Minn.)  158  N. 
W.  798. 

33  Id. 


25  ACTS  IN  GENERAL  §    6 

trary  to  the  rule  of  strict  construction  prescribed  by  the  Supreme 
Court  of  Michigan  for  the  construction  of  the  Act  of  that  state,^'* 
Compensation  Acts,  being  highly  remedial  in  character,  though  in 
derogation  of  the  common  law,  should  generally  be  liberally  and 
broadly  construed  to  effectuate  their  beneficent  purposes.^'     They 

34  This  statute,  being  in  derogation  of  the  common  law,  should  be  strictly 
construed,  though  it  is  remedial  and  provides  a  remedy  against  a  person  who 
otherwise  would  not  be  liable.  Andrejwski  v.  Wolverine  Co.,  182  Mich.  298, 
148  N.  W.  684,  6  N.  C.  C.  A.  807. 

35  Kennerson  v.  Thames  Towboat  Co.,  89  Conn.  367,  94  Atl.  372,  L.  R.  A. 
1916A,  436;  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245;  Coakley's 
Case,  216  Mass.  71,  102  N.  E.  930,  Ann.  Cas.  1915A,  867,  4  N.  C.  C.  A.  508;  Bent- 
ley's  Case,  217  Mass.  79,  104  N.  E.  432 ;  Panasuk's  Case,  217  Mass.  589,  105  N. 
E.  368;  State  ex  rel.  Northfield  v.  Dist.  Court,  131  Minn.  352,  155  N.  W.  103; 
State  ex  rel.  Splady  v.  Dist.  Court,  128  Minn.  338,  151  N.  W.  123 ;  State  ex 
rel.  Virginia  &  R.  L.  Co.  v.  Dist.  Court,  128  Minn.  43,  150  N.  W.  211,  7  N.  C.  C. 
A.  1076;  Lindebauer  v.  W'teiner,  94  Misc.  Rep.  612,  159  N.  Y.  Supp.  987;  In  re 
Petrie,  215  N.  Y.  335,  109  N.  E.  549 ;  McQueeney  v.  Sutphen,  167  App.  Div.  528, 
153  N.  Y.  Supp.  554 ;  Zappala  v.  Indus.  Ins.  Com.,  82  Wash.  314,  144  Pac.  54, 
L.  R.  A.  1916A,  295 ;  Wendt  v.  Industrial  Ins.  Com.,  80  Wash.  Ill,  141  Pac. 
311,  5  N.  C.  C.  A.  790 ;  Peet  v.  Mills,  76  Wash.  437,  136  Pac.  685,  L.  R.  A.  1916A, 
358,  Ann.  Cas.  1915D,  154,  4  N.  C.  C.  A.  786 ;  36  Cyc.  1173  ;  (Wk.  Comp.  Law,  St. 
1915,  §§  2394—1  to  2394—96)  Village  of  Kiel  v.  Industrial  Commission  of  Wis- 
consin (Wis.)  158  N.  W.  68;  Lesh  v.  Illinois  Steel  Co.  (Wis.)  157  N.  W.  539; 
Federal  Rubber  Mfg.  Co.  v.  Havolic,  162  Wis.  341,  156  N.  W.  143 ;  Sadowski  v. 
Thomas  Furnace  Co.,  157  Wis.  443,  146  N.  W.  770. 

The  Act  is  in  a  very  large  sense  remedial,  and  the  Legislature  intended  to 
fix  upon  the  employer  a  liability  which,  though  sounding  in  contract,  need  not 
depend  at  all  upon  the  breach  of  any  duty  by  the  employer.  Bayon  v.  Beckley, 
89  Conn.  154,  161,  93  Atl.  139;  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn. 
116,  96  Atl.  368.   ' 

In  Vaughn  v.  American  Coal  Co.,  1  Conn.  Comp.  Dec.  617,  it  was  held  that 
the  Connecticut  Act  is  remedial,  and  that  the  principles  of  equity  govern. 

The  statute  being  highly  remedial  in  character,  the  courts  ought  to  guard 
against  a  narrow  constniction,  and  not  exclude  a  servant  from  the  benefits 
thereof,  unless  constrained  by  unambiguous  language  or  the  clear  intent  as 
gathered  from  the  entire  act.  State  ex  rel.  Duluth  B.  &  M.  Co.  v.  District 
Court,  129  Minn.  176,  151  N.  W.  912. 

Tlie  Act  is  to  be  construed  liberally  to  protect  the  injured  employe,  whose 
rights  to  compensation  otherwise  it  has  taken  away.  In  re  Meley,  219  Mass. 
136,  106  N.  E.  559.  It  is  to  be  construed  broadly  to  carry  out  its  manifest 
purpose.     In  re  Sullivan,  218  Mass.  141,  105  N.  E.  463,  L.  R.  A.  1916A,  378. 


§  6  workmen's  compensation  26 

should  not,  however,  be  given  a  strained  construction  to  include 
accidents  not  within  their  terms. ^^  It  has  been  held  that  the  Wash- 
It  is  to  be  interpreted  in  the  light  of  its  purpose  and  so  far  as  reasonably 
may  be  to  accomplish  its  beneficent  design.  Young  v.  Duncan,  218  Mass.  346, 
106  N.  E.  1. 

The  Act  should  be  construed  liberally,  and  not  strictly,  as  a  statute  in 
derogation  of  the  common  law,  and  should  receive  as  broad  an  interpretation 
as  can  fairly  be  given  it.  Moore  v.  Lehigh  Valley  R.  Co.,  169  App.  Div.  177, 
154  N.  Y.  Supp.  620.  It  has  been  and  should  be  construed  fairly,  indeed  liber- 
ally, in  favor  of  the  employ^.  In  re  Ileitz,  218  N.  Y.  148,  112  N.  E.  750,  af- 
firming 155  N.  Y.  Supp.  1112.  The  statute  should  be  given  a  broad  and  liber- 
al construction  to  carry  out  the  beneficent  purpose  for  which  it  was  enact- 
ed. Winfield  v.  New  York  Cent.  R.  R.  Co.,  168  App.  Div.  351,  153  N.  Y. 
Supp.  499;  Smith  v.  Price,  168  App.  Div.  421,  153  N.  Y.  S.  221.  The  statute 
must  have  a  broad  and  liberal  construction  to  protect  the  employe  for  all 
injuries  received  in  the  course  of  his  employment,  and  to  charge  upon  the  fund 
or  the  insurer  the  loss  which  otherwise  must  fall  upon  the  master.  Spratt 
V.  Sweeney  &  Gray  Co.,  168  App.  Div.  403,  153  N.  Y.  S.  505.  "It  is  a  fun- 
damental canon  of  the  proper  construction  of  the  Workmen's  Compensation 
Act  that  it  must  be  construed  remediably  and  beneficially,  with  a  view  of 
carrying  out  fairly  and  fully  the  legislative  purpose  and  bringing  within  the 
operation  of  the  act  all  workers  whose  accidental  injuries  are  inherent  oc- 
cupational risks,  rather  than  with  a  view  to  excluding  from  the  operation  and 
protection  of  the  act  persons  whose  claim  to  its  benefits  falls  fairly  within 
the  principle  that  disabilities  to  workers  through  trade  mishaps  should  not 
be  left  to  hang  burdensomely  on  individuals  who  might  thereby  be  forced 
tato  the  class  of  dependents  on  public  or  private  charity."  In  re  Rheinwald, 
168  App.  Div.  425,  153  N.  Y.  S.  598. 

"The  consensus  of  writers  on  the  subject  of  workmen's  compensation  legis- 
lation is  that  such  statutes  are  beneficial  and  remedial ;  that  such  laws  should 
be  interpreted  broadly  and  with  elasticity,  and  that  equity  rather  than  the 
strict  letter  of  the  law  should  govern  same.  The  purpose,  spirit,  and  intent 
of  the  law  should  at  all  times  be  considered,  and  the  language  of  the 
law  taken  in  its  obvious  sense  and  as  intended  to  be  addressed  to  adminis- 
trative officers."  Rep.  Nev.  Indus.  Com.  1913-14,  p.  19 ;  Clements  v,  Columbus 
Sawmill  Co.,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  161. 

In  consti-uing  a  statute  which  is  referable  to  the  police  power  and  was  orig- 
inated to  promote  the  common  welfare,  supposed  to  be  seriously  jeopardized 
by  the  infirmities  of  an  existing  system,  the  conditions  giving  rise  to  the  law, 
the  faults  to  be  remedied,  the  aspirations  evidently  intended  to  be  embodied 

se^Hillestad  v.  Indus.  Ins.  Com.,  80  Wash.  426,  141  Pac.  913,  Ann.  Cas.  1916B, 
789,  6  N.  C.  C.  A.  763;  De  Voe  v.  New  York  State  R.  Co.,  169  App.  Div. 
472,  155  N.  Y.  Supp.  12. 


27  ACTS   IN  GENERAL  §    6 

ington  Act  should  be  so  construed  as  to  suppress  the  mischief  and 
advance  the  remedy  to  be  promoted,  even  to  the  inclusion  of  cases 
within  the  reason,  but  outside  the  letter,  of  the  statute,  that  every 
hazardous  industry  v^ithin  its  purview  may  bear  the  burden  arising 
out  of  injuries  to  its  employes,  regardless  of  the  cause  of  the  acci- 
dent.^^  The  reasons  formerly  supposed  to  justify  penalizing  em- 
ployers as  wrongdoers  at  the  ultimate  expense  of  consumers  should 
play  no  part  in  construing  compensation  laws.  The  directly  re- 
sponsible parties  should  be  regarded  as  standing  for  the  aggregate 
of  consumers  and  joining  with  the  injured  person  in  submitting  to 
an  impartial  tribunal  the  question  how  much,  under  all  the  circum- 
stances and  governed  by  legislative  standards,  the  public  should 
be  burdened  in  order  that  reparation  may  be  made  for  loss  due  to 
the  employment.^^     A  statutory  rule,  specifying  the  duty  of  the 

in  the  enactment,  and  the  effects  and  consequences  as  regards  responding  to 
the  prevailing  conception  of  the  necessities  of  public  welfare,  should  be  con- 
sidered, and  the  enactment  given  such  broad  and  liberal  meaning  as  can  be 
fairly  read  therefrom  so  far  as  required  to  effectively  eradicate  the  mischiefs 
It  was  intended  to  obviate.  Marshall,  J.,  in  City  of  Milwaukee  v.  Miller,  15-1 
Wis.  652,  144  N.  W.  188,  L.  R.  A.  191GA,  1  Ann.  Cas.  1915B,  847,  4  N.  C.  C.  A. 
149.  In  construing  a  statute  which  is  referable  to  the  police  power  and  was 
originated  to  promote  the  common  welfare,  supposed  to  be  seriously  jeopardized 
by  the  infirmities  of  an  existing  system,  "the  conditions  giving  rise  to  the 
law,  the  faults  to  be  remedied,  the  aspirations  evidently  intended  to  be  effec- 
tually embodied  in  the  enactment,  and  the  prevailing  conception  of  the  ne- 
cessities of  public  welfare"  should  be  considered,  and  the  enactment  given 
such  broad  and  liberal  meaning  as  can  fairly  be  read  therefrom,  so  far  as  re- 
quired to  effectively  eradicate  the  mischiefs  it  was  intended  to  obviate.  Foth 
v.  Macomber  &  Whyte  Rope  Co.,  161  Wis.  549,  154  N.  W.  369.  The  purpose 
of  the  Legislature  to  recognize  the  duty  of  the  public  to  reasonably  compen- 
sate workmen  in  the  employ  of  others,  based  upon  mutuality  of  interest  be- 
tween employers,  employes,  and  the  public,  should  be  considered  in  construing 
the  Act.    Lesh  v.  Illinois  Steel  Co.    (Wis.)  157  N.  W.  539. 

3  7  Zappala  v.  Industrial  Ins.  Commission,  82  Wash.  314,  144  Pac.  54,  L. 
R.  A.  191GA,  295;  State  ex  rel.  Davis-Smith  Co.  v,  Clausen,  65  Wash.  15G,  117 
Pac.  1101,  37  L.  R.  A.  (N.  S.)  466 ;  Peet  v.  Mills,  76  Wash.  437,  136  Pac.  685, 
L.  R.  A.  1916A,  3.58,  Ann.  Cas.  1915D,  154,  4  N.  C.  C  A.  786. 

3  8  City  of  Milwaukee  v.  Miller,  154  Wis.  652,  144  N.  W.  188,  L.  R.  A.  1916A, 
].  Ann.  Cas.  1915B,  847. 


§  6  workmen's  compensation  28 

employer  to  furnish  a  place  of  employment  as  free  from  danger  to 
the  life,  health,  or  safety  of  employes  or  frequenters  as  the  nature 
of  the  employment  will  reasonably  permit,  should  receive  a  liberal 
construction  in  favor  of  life,  health,  and  limb.^*  Since  the  design  is 
to  decrease,  not  promote,  unnecessary  litigation,  plain  words  should 
be  given  their  ordinary  signification,*"  and  all  provisions  be  given 
effect,    if   possible,*^    according   to   the   legislative   intent.*^      The 

3  0  Tallman  v.  Chippewa  Sugar  Co.,  155  Wis.  36,  143  N.  W.  1054. 

4  0  In  re  Nichols,  217  Mass.  3,  104  N.  E.  566,  Ann.  Cas.  1915C,  862.  Work- 
men's Compensation  Acts  should  be  given  their  practical,  popular  meaning, 
and  a  technical  construction  should  not  be  placed  upon  them.  Small  v.  Coles, 
2  King's  Bench,  821 ;  Rogers  v.  Cardiff  Corporations,  8  W.  C.  C.  51 ;  Adams 
V.  Shaddox,  2  King's  Bench,  859.  As  declared  in  N.  W.  Iron  Go.  v.  Indus- 
trial Commission,  154  Wis.  97,  142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas. 
1915B,  877:  "In  giving  construction  to  such  statutes  words  are  to  be  taken 
and  construed  in  the  sense  in  which  they  are  understood  in  common  language, 
taking  into  consideration  the  text  and  subject-matter  relative  to  which  they 
are  employed."  Reaffirmed  in  Vennen  v.  New  Dells  Lumber  Co.,  161  Wis. 
370,  154  N.  W.  640,  L.  R.  A.  1916A,  273. 

41  While  the  provisions  of  the  Michigan  statute  are  so  ambiguous  as  not  to 
be  free  from  doubt,  all  of  its  provisions  should  be  given  effect,  if  possible. 
Weaver  v.  Maxwell  Motor  Co.,  186  Mich.  588,  152  N.  W.  993,  K  R.  A.  1916B, 
1276. 

Though  the  statute  is  remedial  in  the  broadest  sense  of  the  term,  and  to 
be  liberally  construed,  the  court  is  without  power  or  authority  to  change  the 
plain  language  thereof  by  construing  it  to  mean  the  reverse  of  what  is  clearly 
stated.     State  ex  rel.  Garvin  v.  District  Court,  129  Minn.  156,  151  N.  W.  910. 

In  construing  an  Act,  every  part  thereof,  as  well  as  the  title,  must  be  taken 
into  consideration.  Victor  Chemical  Works  v.  Industrial  Board  of  Illinois 
(111.)  113  N.  E.  173. 

4  2  The  cardinal  rule  in  the  constniction  of  a  statute  is  to  ascertain  the  in- 
tention of  the  Legislature  as  it  is  expressed  in  the  words  of  the  statute,  and 
for  this  purpose  the  whole  of  the  act  must  be  considered  together.  Mitchell 
V.  State,  115  Md.  360,  80  Atl.  102|0;  Healy  v.  State,  115  Md.  377,  80  Atl. 
1074 ;  Pumell  v.  State  Bd.  of  Ed.,  125  Md.  266,  93  Atl.  518.  "The  real  intent, 
when  ascertained,  will  always  prevail  over  the  literal  sense  of  the  language." 
Cutty  V.  Carson,  125  Md.  25,  33,  93  Atl.  302,  305;  Brenner  v.  Brenner,  127 
Md.  189,  96  Atl.  287. 

As  stated  by  Donahue,  J.,  in  Sipe,  Auditor,  v.  State  ex  rel.,  86  Ohio  St.  80, 
87,  99  N.  K  208,  210:     "That  intent  [of  the  Legislature]  must  be  ascertained 


29  ACTS   IN  GENERAL  §   6 

Washington  Act,  by  avoiding  the  use  of  terms  commonly  employed 
in  the  various  Compensation  Acts,  such  as  "accident"  and  "aris- 
ing out  of  and  in  the  course  of  employment,"  indicates  an  intent 
to  get  rid  of  judicial  controversy.*^  The  provision  of  this  Act  that 
the  jurisdiction  of  the  courts  shall  be  abolished  on  the  controver- 
sies covered  by  the  Act  must  be  liberally  construed  to  effectuate 
the  purposes  of  the  Act/*  Administrative  interpretation,  while  not 
conclusive,  is,  if  long  continued,  of  persuasive  effect,  and  not  to  be 
disregarded,  unless  this  course  be  necessitated  by  judicial  con- 
struction.*^ In  view  of  the  similarity  of  the  Acts  of  England  and 
of  the  various  states,  the  decisions  of  the  courts  of  England  and 
of  states  other  than  the  one  whose  Act  is  under  consideration  are 
very  persuasive,  though  not  conclusive,  in  the  construction  of  a  par- 
t'icular  Act,*®   especially  where  the  decision  antedates  the  Act.*^ 

first,  if  possible,  from  the  language  used,  and,  where  that  language  is  clear 
and  unambiguous,  courts  have  no  authority  to  change  it."  This  rule  is  af- 
firmed in  King  v.  Greenwood  Cemetery  Ass'n,  67  Ohio  St.  244,  65  N.  E.  882; 
Hough  V.  Dayton  Mfg.  Co.,  66  Ohio  St.  427,  64  N.  E.  521 ;  Slingluff  v.  Weaver, 
66  Ohio  St.  621,  64  N.  E.  574;  State  v.  Industrial  Commission,  92  Ohio  St. 
434,  111  N.  E.  299. 

43  Stertz  V.  Industrial  Ins.  Com.  (1916,  Wash.)  158  Pac.  256. 

44  Id. 

4  5  Industrial  Commission  of  Ohio  v.  Brown,  92  Ohio  St.  309,  110  N.  E.  744, 
L.  R.  A.  1916B,  1277. 

46  A  uniformity  of  construction  of  provisions  of  acts  of  other  states  similar 
to  the  Workmen's  Compensation  Act  of  this  state,  while  not  conclusive,  is  a 
persuasive  reason  for  similarly  construing  this  Act.  Appeal  of  Hotel  Bond 
Co.,  89  Conn.  143,  93  Atl.  245. 

The  language,  "arising  out  of  and  in  the  course  of  the  employment,"  is 
also  used  in  the  English  Act,  and  decisions  of  the  courts  of  that  country  may 
properly  be  examined  for  their  views  as  to  the  construction  of  this  language. 
Moore  v.  Lehigh  Valley  R.  Co.,  169  App.  Div,  177,  154  N.  Y.  Supp.  620; 
Bryant  v.  Fissel,  84  N.  J.  Law,  72,  86  Atl.  458;  Newman  v.  Newman,  169 
App.  Div.  745,  155  N,  Y.  Supp.  665. 

Comparison  indicates  that  those  who  prepared  the  Michigan  Act  made  a 

47  In  re  Employer's  Liability  Assur.  Corporation  (Mass.)  102  N.  E.  697; 
Ryalls  V.  Mechanics'  Mills,  150  Mass.  190,  22  N.  E.  766,  5  L.  R.  A.  677. 


s  6  workmen's  compensation  30 

These  Acts  are  not,  as  a  rule,  dependent  for  their  enforcement  up- 
on the  validity  of  the  contract  of  employment.*^ 

It  will  be  presumed  that  the  Legislature,  in  adopting  an  amend- 
ment, intended  to  make  some  change  in  the  existing  law.*^  In  con- 
struing an  ambiguous  amendment,  the  history  of  the  law,  the  con- 
dition of  the  law  prior  to  the  amendment,  the  occasion,  necessity, 
and  object  of  the  change,  are  important  to  be  considered.  An 
amendment  of  an  Act  "to  read  as  follows"  repeals  everything  in 
the  old  statute  not  embodied  in  the  new.  From  then  on  the  old 
provisions  derive  their  force  from  the  amendatory  Act.  The  old 
provisions  are  not,  however,  repealed  and  re-enacted.  They  are 
considered  as  having  been  the  law  all  along,  the  new  provisions  as 
enacted  at  the  time  the  amendment  took  effect;  in  other  respects 
this  form  of  amendment  is  no  different  in  effect  from  one  in  the 
form  of  an  independent  statute.^** 

thorough  study  of  then  existing  laws  and  decisions  upon  the  subject,  and, 
conservativelj'  adhering  to  tested  precedent.  \Yheu  available,  painstakingly  de- 
veloped a  comparatively  mild  and  well-balanced  law,  avoiding  uncertainties 
and  extremes  which  some  of  the  more  radical  acts  enacted  elsewhere  disclose. 
As  a  result  similar  provisions  may  be  found  in  the  Workmen's  Compensation 
Acts  of  other  states  which  have  been  passed  upon  in  their  courts  of  last  re- 
sort, in  carefully  considered  and  well-reasoned  opinions.  Mackin  v.  Detroit 
Timkins  Axle  Co.,  187  Mich.  8,  153  N.  W.  49.  While  English  cases  cannot  be 
regarded  as  direct  authority  on  constitutional  questions,  they  are,  when 
an  English  statute  has  been  adopted  here,  authority  to  be  recognized  in  the 
construction  of  the  Act.  Grand  Rapids  Lumber  Co.  v.  Blair  (INIich.)  157  N. 
W.  29 :    Schmidt  v.  O.  K.  Baking  Co.,  90  Conn.  217,  96  Atl.  963. 

Decisions  under  the  English  Act  are  authority  in  so  far  as  there  is  no  sub- 
stantial difference  between  the  provisions  of  such  Act  and  the  Massachusetts 
Act.    Gove  V.  Royal  Indemnity  Co.,  223  Mass.  187,  111  N.  E.  702. 

4  8  Kenny  v.  Union  Ry.  Co.,  166  App.  Div.  497,  152  N.  Y.  Supp.  117. 

49  Construing  Laws  1913,  c.  467,  §  14  (Gen.  St.  1913,  §  8208),  as  amended  by 
Laws  1915,  c.  209,  §  5.    State  ex  rel.  Maryland  Casualty  Co.  v.  District  Court, 

(Minn.)  158  N.  W.  798. 

5  0  State  ex  rel.  Maryland  Casualty  Co.  v.  District  Court,  supra. 


31  ACTS  IN   GENERAL  §    7 

§  7.     Retroactive  operation 

In  accordance  with  the  usual  rule  of  statutory  construction, 
which  does  not  favor  retroactive  operation,  it  has  been  held  that 
the  Iowa  and  Ohio  Acts  do  not  affect  contracts  existing  at  the  time 
of  their  enactment,^^  and  that  the  Arizona  Act  is  inapplicable  to 
injuries  occurring  prior  to  its  enactment.^^  The  Minnesota  Act, 
however,  applies  to  the  relation  of  employer  and  employe  exist- 
ing at  the  time  of  its  passage  and  continuing  thereafter.^^  The 
one-year  limitation  clause  of  the  Act  of  New  Jersey  of  1913  does 
not  operate  retrospectively,  in  the  absence  of  express  words  giving 
it  that  effect,  and  therefore  does  not  limit  claims  for  compensation 
under  the  Act  of  1911  on  the  expiration  of  one  year  after  the  Act 
of  1913  went  into  operation.^*  Under  the  supplement  to  the  orig- 
inal New  Jersey  Act,  recovery  was  allowed,  though  the  workman's 
death  occurred  at  5  o'clock  on  the  afternoon  of  July  4,  1911,  the 
date  on  which  the  supplement  took  effect.'"  Where  an  injury  oc- 
curred before  the  1913  amendment  to  the  Act,  which  makes  an  em- 
ployer liable  to  the  employes  of  an  independent  or  subcontractor 
just  as  he  would  have  been  had  the  employe  been  working  directly 
for  him,  the  injury  was  governed  by  the  law  existing  at  the  time  it 
happened,  rather  than  by  the  law  as  amended."^  Whether  the  right 
to  compensation  is  controlled  by  the  circumstances  and  law  ex- 

51  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037;  (102  Oliio 
Laws,  p.  524)  State  v.  Creamer,  85  Ohio  St.  349,  97  N.  E.  e02,  39  L.  R.  A. 
(N.  S.)  694. 

5  2  (Laws  Sp.  Sess.  1912,  p.  23)  Arizona  &  N.  M.  Ry.  Co.  v.  Clark,  207  Fed. 
817,  125  C.  C.  A.  305,  affirmed  on  appeal  on  other  questions,  235  U.  S.  669,  35 
Sup.  Ct.  210,  59  L.  Ed.  415,  L.  R.  A.  1915C,  834. 

5  3  State  ex  rel.  Nelson-Spelliscy  Co.  v.  Dist.  Ct.  of  Meeker  County,  128  Minn. 
221,  150  N.  W.  623. 

54Baur  V.  Court  of  Common  Pleas,  88  N.  J.  Law,  128,  95  Atl.  627;  Bir- 
mingham V.  Lehigh  &  W.  Coal  Co.  (N.  J.)  95  Atl.  242. 

5  5  (P.  L.  1911,  p.  763,  supplement)  Sexton  v.  Newark  District  Telegraph  Co., 
84  N.  J.  Law,  85,  86  Atl.  451. 

5  6  Zobel  V.  Godlevski,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  12. 


§  8  workmen's  compensation  32 

isting-  at  the  date  of  injury  or  the  date  of  death  is  reserved  for 
consideration  in   a  subsequent  section.^' 

§  8.     Territorial  operation 

Except  as  to  seamen,  for  whom  express  provision  is  made,  the 
English  Act  applies  only  within  the  territorial  limits  of  the  United 
Kingdom, ^^  but  by  the  acts  of  several  foreign  countries  definite 
and  careful  provision  is  made  as  to  accidents  occurring  out- 
side their  territory.'^"  In  many  of  the  state  Acts  no  such  pro- 
vision is  made,  though  several  exempt  persons  engaged  in  inter- 
state commerce  where  the  federal  laws  shall  be  construed  to  fur- 
nish exclusive  remedies,  while  some  expressly  limit  the  operation 
to  employment  within  the  state.*'"  It  is  well  settled,  however,  that 
a  state  has  power  to  extend  the  privileges  of  a  Compensation  Act 
to  employers  and  employes  outside  the  state. ®^     In  recognition  of 

5  7  gee  §  SO,  post. 

5s  (English  Wk.  Comp.  Act,  §  7)  Tomalin  v.  Pearson  &  Son  (1909)  2  B.  W. 
C.  C.  1,  2  K.  B.  61,  7  L.  J.  K.  B.  N.  S.  863,  100  L.  T.  N.  S.  085,  25  Times  L. 
R.  477 ;    Hicks  v.  Maxton  (1907,  C.  C.)  124  L.  T.  Jo.  135,  1  B.  W.  C.  C.  150. 

Where  a  workman,  not  a  seaman,  was  lost  at  sea  while  on  his  way  abroad 
for  his  employers,  his  employment  was  not  within  the  Act.  Schwartz  v.  In- 
dia Rubber,  Gutta  Percha  &  Telegraph  Works  Co.,  Ltd.  (1912)  5  B.  W.  C. 
C.  300,  2  K.  B.  299  (1912)  W.  M.  98,  28  Times  L.  R.  331,  81  L.  J.  K.  B.  N.  S. 
780,  (1912)  W.  C.  R.  B.  P.  190,  106  L.  T.  N.  S.  706.  The  employment  of  a 
British  subject  under  a  contract  entered  into  in  England,  the  execution  of 
which  took  him  abroad,  where  he  was  killed,  was  not  within  the  Act  Tomalin 
V.  Pearson  &  Son,  Ltd.  (1910)  supra. 

5  9  France,  Acts  of  1898,  1902,  1905,  1906,  title  3;  Austria,  Law  of  1894, 
art.  2;  Belgium,  Act  of  1903,  art.  26;  Germany,  Law  of  1900(a),  art.  4; 
German  Insurance  Code  of  1911,  art.  157.  See  24  Annual  Report  of  U.  S. 
Com.  of  Labor,  vol.  2  (1909)  pp.  2501,  2456,  2457,  2464,  2517,  2596. 

eo  See  Kansas,  Laws  1911,  c.  218,  §  7;  Michigan,  Laws  Extra  Sess.  1912, 
No.  3,  pt.  6,  §  4;  Washington,  Laws  1911,  c.  74,  §  18;  Nevada,  Laws  1911, 
c.  183,  §  3;  Washington,  Laws  1911,  c.  74,  §  2;  Wisconsin,  Laws  1911,  c.  50, 
§  1 ;   and  acts  of  other  states. 

61  Mulhall  V.  Fallon,  176  Mass.  266,  57  N.  E.  386,  54  L.  R.  A.  934.  79  Am. 
St.  Rep.  309;    In  re  Gould,  20.5  Mass.  480,  102  N.  E.  693,  Ann.  Cas.  1914D, 


33  ACTS  IN   GENERAL  §    8 

this  power,  state  courts  have  frequently  given  effect  to  the  com- 
pensation laws  of  other  states  and  countries,  where  they  were  not 
contrary  to  the  laws  or  policy  of  the  state  of  the  forum. ''^  In  view 
of  the  conflict  of  authority  and  differences  between  the  various  Acts, 
it  is  difficult  to  formulate  a  precise  rule  relative  to  the  extraterri- 
torial operation  of  these  laws ;  but  it  may  be  stated  on  the  weight 
of  authority  that  Acts  not  construed  to  be  contractual  in  character 
do  not,  in  the  absence  of  unequivocal  language  to  the  contrary,  ap- 
ply where  the  injury  occurs  outside  the  state, *^^  while,  on  the  other 
hand,  Acts  construed  to  be  contractual  protect  one  injured  outside 
the  state,  where  the  contract  of  employment  was  made  within  the 
state  and  is  governed  by  the  laws  of  the  state.®*     However,  to  this 

372 ;  Gooding  v.  Ott  (W.  Va.)  87  S.  E.  863 ;  Post  v.  Burger  &  Gohlke,  216  N. 
Y.  544,  111  N.  E.  351,  Ann.  Cas.  1916B,  158. 

While  ttie  statute  itself  may  have  no  extraterritorial  effect,  it  can  require 
a  contract  to  be  made  by  two  parties  to  a  hiring,  which  shall  have  an  ex- 
traterritorial effect.    Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  22. 

6  2  Post  V.  Burger  &  Gohlke,  216  N.  Y.  544,  111  N.  E.  351,  Ann.  Cas.  1916B, 
158. 

The  New  York  courts  have  recognized  the  compensation  laws  of  other  states 
and  countries,  and  given  effect  to  them  unless  they  were  contrary  to  the  laws 
or  policy  of  New  York.  Schweitzer  v.  Hamburg-Am.  Line,  149  App.  Div.  900, 
134  N.  Y.  Supp.  812;  Id.  78  Misc.  Rep.  448,  138  N.  Y.  Supp.  944;  Albanese 
v.  Stewart,  78  Misc.  Rep.  581,  138  N.  Y.  Supp.  942;  Wasilewski  v.  Warner 
Sugar  Refining  Co.,  87  Misc.  Rep.  156,  149  N.  Y.  Supp.  1035 ;  Wooden  v.  West- 
ern N.  Y.  &  P.  R.  R.  Co.,  126  N.  Y.  10,  26  N.  E.  1050,  13  L.  R.  A.  458,  22  Am. 
St.  Rep.  803. 

6  3  In  the  absence  of  unequivocal  language  to  the  contrary,  it  is  not  to  be 
presumed  that  statutes  respecting  this  matter  are  designed  to  control  con- 
duct or  fix  the  rights  of  parties  beyond  the  territorial  limits  of  the  state.  In 
re  American  Mut.  Liability  Ins.  Co.,  215  Mass.  480,  102  N.  E.  693.  This  rule 
is  also  supported  by  Boston  &  Maine  R.  R.  Co.  v.  Trafton,  151  Mass.  229, 
23  N.  E.  829 ;  Howarth  v.  Lombard,  175  Mass.  570,  572,  50  N.  E.  888,  49  L.  R. 
A.  301;  Young  v.  Boston  &  Maine  R.  R.  Co.,  168  Mass.  219,  46  N.  E.  624; 
Stone  V.  Old  Colony  St.  Ry.,  212  Mass.  459-464,  99  N.  E.  218;  Merrill  v.  Bos- 
ton &  Lowell,  63  N.  H.  256,  260. 

64  Where  the  statute  compels  submission  by  the  employer  and  employ*^, 
there  is  no  contract,  as  a  general  rule,  enforceable  outside  of  the  state.  But 
where,  as  in  New  Jersey  and  West  Virginia,  the  statute  makes  acceptance  op- 

HON.COMP. — ^3 


§  8  workmen's  compensation  34 

or  any  rule  formulated  there  appear  to  be  exceptions.  The  Acts 
of  Michigan,  Nevada,  and  Minnesota  have  been  held  inapplicable 

tional,  and  the  parties  freely  contract  with  reference  to  the  statute,  the  stat- 
ute should  be  read  into  the  employment  contract  as  an  integral  part  thereof, 
enforceable  in  any  jurisdiction,  the  same  as  any  other  contract.  Gooding  v. 
Ott  (W.  Va.)  87  S.  E.  863. 

When  a  suit  is  brought  in  New  Jersey  for  a  liability  under  the  W'^rkmen's 
Compensation  Act,  and  the  contract  of  employment  is  a  New  Jersey  contract, 
the  fact  that  the  accident  happened  in  another  state  is  irrelevant.  The  place 
where  the  accident  occurs  is  of  no  more  relevance  than  is  the  place  of  ac- 
cident to  the  assured,  in  an  action  on  a  contract  of  accident  insurance,  or  the 
place  of  death  of  the  assured  in  an  action  on  a  contract  of  life  insurance. 
Eounsaville  v.  Central  R.  Co.,  87  N.  J.  Law,  371,  94  Atl.  392. 

The  New  York  Act  applied  where  an  injury  was  received  by  a  sheet  metal 
worker  while  engaged  in  performing  hazardous  services  for  his  employer  out- 
side the  state.  Worlcmen's  Compensation  Law  (Consol.  Laws,  c.  67);  Post 
V.  Burger  &  Gohlke,  216  N.  Y.  544,  111  N.  E.  351,  Ann.  Cas.  1916B,  158.  An 
award  of  compensation  to  a  captain  of  lighters  was  confirmed,  where  both 
employer  and  employe  resided  in  New  York,  thougli  the  injury  occurred  in  New 
Jersey  while  the  employe  was  engaged  in  delivering  bags  of  beans  from  a 
lighter  to  trucks.  Edwardson  v.  Jarvis  Lighterage  Co.,  168  App.  Div.  368, 
153  N.  Y.  Supp.  391.  The  Act  may  apply  to  an  accident  happening  in  a  for- 
eign country.  Kennedy  v.  Kennedy  Mfg.  Co.,  The  Bulletin,  N.  Y.,  Vol..  1, 
No.  5,  p.  12.  An  employ§  of  a  domestic  corporation,  who  was  a  resident 
of  New  York,  and  who  was  injured  in  Connecticut  while  on  a  short  trip  into 
that  state  in  the  course  of  his  employment,  was  entitled  to  compensation 
under  the  New  York  Act.  Valentine  v.  Smith- Angevine  Co.,  2  N.  Y.  St.  Dep. 
Rep.  460,  affirmed  in  168  App.  Div.  403,  153  N.  Y.  Supp.  505 ;  Post  v.  Burger  & 
Gohlke,  216  N.  Y.  544,  111  N.  E.  351,  Ann.  Cas.  1916B,  158. 

The  cause  of  action  of  a  person  injured  outside  of  the  state  of  Iowa  is  ex 
contractu.  The  lex  loci  contractus  governs  the  construction  of  the  contract 
and  determines  the  legal  obligations  arising  from  it.  Op.  Sp.  Counsel  to  Iowa 
Indus.  Com.  (1915)  p.  22 ;    9  Cyc.  664. 

Where  an  employe  of  an  Ohio  employer  is  sent  in  the  course  of  his  employ- 
er's business  to  a  foreign  state  and  is  there  injured  in  the  course  of  his  em- 
ployment, he  is  entitled  to  compensation  for  the  consequential  disability.  In 
re  Shmidt,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  21. 

Where  parties  to  an  employment  contract  made  in  California  are  resi- 
dents thereof,  the  employer  is  liable  for  an  accident  in  such  employment,  al- 
though the  work  was  to  be  performed  wholly  outside  the  state,  and  the  term 
of  employment  commenced  upon  leaving  the  state  and  ended  upon  arrival 
within  the  state,  and  the  employment  was  nonmaritime.  Polin  v.  Bristol 
Bay  Packing  Co.,  3  Cal.  I.  A.  C.  Dec.  12. 

In  Kennerson  v.  Thames  Towboat  Co.,   89  Conn.  367,  94  Atl.  372,   L.  R. 


35  ACTS  IN  GENERAL  §    8 

where  the  injury  was  received  in  a  foreign  jurisdiction.^^  In  this 
connection,  in  substantiation  of  tlie  soundness  of  its  ruling,  the 

A.  1916A,  436,  it  was  held  that  the  Connecticut  Act  applies  to  persons  hired 
in  the  state,  whose  employment  contracts  are  to  be  employed  partly  within 
and  partly  without  the  state ;  the  court  saying:  "In  a  sense  the  injury  may  be 
said  to  have  been  sustained  in  the  place  of  the  contract,  and  if  appeal  is  tak- 
en, in  cases  of  injury  occuri-ing  without  the  state,  to  the  county  of  the  con- 
tract, the  terms  of  the  act  will  be  reasonably  satisfied.    The  precise  question 

6  5  A  traveling  salesman,  injured  in  Buffalo,  N.  Y.,  while  in  the  active  dis- 
charge of  his  duties,  was  not  entitled  to  compensation;  the  provisions  of  the 
Compensation  Act  not  covering  accidents  occurring  outside  of  the  state  of 
Michigan,  even  though  both  parties  are  residents  of  this  state.  Keyes-Davis 
Co.  V.  Alderdyce,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  19. 

In  the  absence  of  evidence  in  the  law  itself  that  it  is  intended  to  have  extra- 
territorial operation,  the  Nevada  Industrial  Insurance  Act  is  operative  and 
effective  only  within  the  boundaries  of  the  state  of  Nevada.  Rep.  Nev.  Indus. 
Com.  1913-14,  p.  25.  There  is  nothing  in  the  Nevada  Industrial  Insurance  Act 
which  expressly  states  that  the  law  is  operative  beyond  the  boundaries  of  the 
state,  nor  is  there  anything  in  the  Act  which  indicates  a  purpose  to  make  it 
operative  or  applicable  beyond  the  boundaries  of  the  state.  Id.  The  rights 
and  remedies  provided  by  the  Nevada  Industrial  Insurance  Act  are  statutory 
rights  and  remedies,  created  by  the  statute,  and  existing  only  by  force  of  the 
statute.  If  the  statute  is  inoperative  at  the  place  the  accideijt  happened,  the 
happening  of  the  accident  gives  neither  rights  nor  remedies.    Id. 

Where  a  workman  employed  by  a  St.  Paul  firm  is  insured  while  working  in 
the  state  of  Washington,  and  the  employer  is  under  the  Minnesota  Workmen's 
Compensation  Act  with  respect  to  his  employes,  the  employe  must  proceed 
under  the  Compensation  Act  of  Washington  (Workmen's  Compensation  Act, 
Gen.  Laws  Wash.  1911,  c.  74)  ;  it  being  an  old  and  established  rule  that  the 
laws  of  the  state  have  no  extraterritorial  force  or  effect  outside  the  limits  of 
the  state.  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  15.  In  an  em- 
ploye's action,  brought  in  Minnesota  for  injuries  caused  by  the  negligence  of 
his  employer,  it  appeared  that  plaintiff  entered  defendant's  employ  on  rail- 
road construction  work  on  April  2,  and  worked  at  two  different  places  within 
the  state ;  that  on  June  26  of  the  same  year  he  complied  with  defendant's  re- 
quest that  he  go  to  Wisconsin  on  similar  work  being  done  there  by  defendant; 
and  that  he  was  injured  four  days  later.  His  original  hiring  was  for  no  defi- 
nite time  and  no  particular  place.  On  June  10  defendant  elected  to  accept  the 
Wisconsin  Workmen's  Compensation  Act.  The  court  held  that  plaintiff's  right 
to  damages  or  compensation  depended  on  the  law  of  Wisconsin,  where  the 
injury  was  received,  and  not  on  the  law  of  Minnesota.  Johnson  v.  Nelson, 
128  Minn.  158,  150  N.  W.  620. 


S  8  workmen's  compensation  36 

Minnesota  Supreme  Court  laid  down  the  proposition  that,  although 
an  employe's  action  for  injuries  is  predicated  on  his  relation  as  serv- 

we  are  considering  has  been  the  subject  of  discussion  in  two  cases:     One 
under  the  New  Jersey  Act,  a  contractual  optional  act  very  similar  to  our 
own,  where  the  trial  court,  in  Deeny  v.  Wright  &  Cobb  Lighterage  Co.,  36 
N.  J.  Law  J.  121,  construed  the  contract  under  the  New  Jersey  Act  as  we  con- 
strue these  contracts;   the  other  under  the   Massachusetts  Act,   where   the 
Supreme  Court  construed  their  act  as  confined  to  accidents  within  the  state. 
Gould's  Case,  215  Mass.  480,  102  N.  E.  693,  Ann.  Cas.  1914D,  372.     We  must 
accept    the   construction   accorded    the   Massachusetts   Act   by   its    Supreme 
Court.     It  may  be  well,  however,  to  point  out  that  the  court  does  not  state 
that  its  act  is  contractual  in  character.     That,  as  we  have  indicated,  is  of 
final  importance  in  the  conclusion  we  reach  concerning  our  own  act.     Then, 
too,  under  the  Massachusetts  Act,  the  employ^  is  merely  the  beneficiary  under 
a  contract  between  the  employer  and  the  insured ;    with  us  the  employer  and 
employg  enter  into  a  contract  relation.     In  its  reference  to  and  comment 
upon  certain  sections  of  their  Act  the  court  says  that  these  must  be  found 
within  the  act  from  'unequivocal  language,'  or  'plain  and  unmistaliable  words,' 
that  the  Act  was  intended  to  relate  to  injuries  without  the  commonwealth. 
We  have  adopted  a  broader  rule.     We  read  our  Act  in  the  light  of  the  pur- 
pose, subject-matter,  and  history  of  the  Act,  to  determine  whether  it  expressly 
or  by  reasonable  inference  intended  to  include  in  its  contract  injuries  with- 
out our  jurisdiction.     This  is  our  ordinary  rule  in  the  interpretation  of  stat- 
utes.   The  court  states  that:    The  subject  of  personal  injuries  received  by  a 
worliman  in  the  course  of  his  employment  is  within  the  control  of  the  sover- 
eign power  where  the  injury  occurs.     To  subject  them  to  the  laws  of  the 
many  jurisdictions  in  which  they  may  be  engaged  will  be  especially  burden- 
some to  them,  and  involve  them  probably  in  greater  expense  and  liability  and 
far  greater  difficulties  than  under  the  old  system.     Equally  hard  will  it  prove 
to  the  employe,  since  he  must  pursue  his  remedy  in  the  state  of  the  accident, 
or  the  federal  court  applying  that  state's  law,  and  thus  he  may  be  brought 
under  any  one  of  many  different  Compensation  Acts,  with  whose  provisions  he 
cannot  hope  to  be  familiar,  some  acts  contractual  in  character,  some  com- 
pulsory, some  optional,  and  some  ex  delicto,  and  he  may  find  he  has  forfeit- 
ed the  benefit  of  the  foreign  act  through  failure  to  comply  with  its  provisions. 
A  reading  of  the  several  acts  now  in  force  convinces  us  that  these  difficulties 
are  not  imaginative,  but  imminent  actualities.     Is  it  reasonable  to  infer  that 
our  Legislature,  inaugurating  a  new  system,  based  upon  humanitarian  and 
economical  considerations,  should  intentionally  frustrate  the  object  of  the  new 
system,  and  cast  a  multitude  of  employers  and  employes  into  a  maelstrom  of 
trouble,  uncertainty,  and  liability?    On  the  other  hand,  is  it  not  reasonable  to 
infer  that  the  Legislature,  having  bottomed  the  right  to  compensation  upon 
contract,  deemed  unimportant  the  place  of  injury,  since  it  must  be  presumed 


37  ACTS  IN   GENERAL  §    8 

ant  of  defendant  and  defendant's  obligation  as  master,  it  is  nev- 
ertheless one  in  tort,  governed  by  the  law  of  the  place  of  injury, 
without  regard  to  the  law  of  the  place  where  the  contract  of  em- 
ployment was  made,  although  the  employe  was  ignorant  of  the 
law  of  the  place  of  injury.®^  In  order  that  a  contract  of  employ- 
to  have  known  that  it,  and  not  the  place  of  injury,  would  govern  the  recovery? 
Such  a  construction  of  the  act  would  lift  insuperable  burdens  from  industry 
and  commerce  and  workmen,  and  give  to  each  his  course  and  the  ascertained 
fruits  of  the  contract  of  his  will.  Whether  the  contract  shall  include  injuries 
in  a  jurisdiction  other  than  where  the  contract  was  made  is  detei-mined  by 
the  expressions  or  implications  of  each  act." 

In  Cohen  v.  Union  News  Co.,  1  Conn.  Comp.  Dec.  62,  it  was  held  that  the 
Connecticut  Act  applies  to  all  employment  conducted  within  the  state,  even 
though  the  contract  of  employment  was  made  in  New  York.  Jurisdiction 
lies  where  the  injury  occurs.  In  Welton  v.  Waterbury  Rolling  Mill,  1  Conn. 
Comp.  Dec.  78,  it  was  held  that  where  a  contract  of  employment  was  made 
in  Connecticut  between  a  resident  of  that  state  and  a  company  incorporated 
and  doing  business  in  the  state,  both  of  whom  had  accepted  the  Compensation 
Act,  an  injury  received  by  the  employs  in  Canada  while  traveling  in  the  course 
of  his  duties  is  compensable  under  the  Connecticut  Act. 

The  Rhode  Island  Act  applies  to  an  injury  received  outside  the  state,  where 
the  contract  of  employment  was  made  within  the  state  and  the  employment 
was  begun  therein :  the  employe  being  sent  into  another  state  later  to  complete 
the  work.    Grinnell  v.  Wilkinson  (R.  I.)  98  Atl.  103. 

In  Schweitzer  v.  Hamburg-American  Line,  78  Misc.  Rep.  448,  138  N.  T. 
Supp.  944,  the  German  Act,  when  subscribed  to  by  both  parties,  was  held  to 
preclude  the  recovery  of  damages  in  New  York  for  injuries  to  an  employg 
on  a  vessel  leaving  the  New  York  City  quarantine  dock;  the  court  saying: 
"A  foreign  law  to  which  both  employer  and  employes,  engaged  in  interstate  and 
foreign  commerce  and  transportation,  have  subscribed,  and  upon  the  basis 
of  which  the  contract  of  employment  was  made  and  entered  into,  where  the . 
cars  or  ships  of  the  employer  enter  our  state,  and  in  or  upon  which,  while 
within  our  borders,  an  accident  occurs  to  the  employe  through  his  employer's 
negligence,  particularly  where  the  contract  of  employment  provides  for  a  fix- 
ed compensation  in  case  of  specified  injury  to  take  the  place  of  a  right  of  ac- 
tion at  law,  and  which  is  lawful  both  in  the  place  where  made  and  that  in 
which  the  cause  of  action  arose,  should  obtain  recognition  and  enforcement 
here.  To  hold  othenvise  works,  not  for  benefit,  but  rather  for  injury,  to  our 
interstate  and  foreign  commerce." 

6  6  Johnson  v.  Nelson,  128  Minn.  158,  150  N.  W.  620.  An  employe  cannot 
plead  ignorance  of  the  Compensation  Act  of  the  state  wherein  his  employment 


§  8  workmen's  compensation  38 

ment,  and  consequentially  the  Compensation  Act  incorporated  into 
it  by  construction,  may  be  governed  by  the  laws  of  the  state  where 
the  contract  was  made,  it  is  frequently  of  importance  that  the  em- 
ployer shall  have  been  doing  business  in  that  state.®''  While  the 
place  of  residence  of  the  contracting  parties  may  likewise  become 

was  performed  and  under  which  alone  his  right  to  redress  for  injury  must  be 
asserted.    Id. 

6  7  "^^lere  a  coal  company  of  West  Virginia,  with  principal  offices  and  tipple 
and  main  entrance  and  the  principal  part  of  its  mine  located  in  that  state,  has 
qualified  under  the  provisions  of  section  9  of  the  Workmen's  Compensation 
Act  (Laws  1913,  c.  10;  Code  1913,  c.  15p,  §  9  [sec.  665]),  as  amended  by  Acts 
1915,  c.  9,  by  paying  the  premiums  of  liability  and  by  giving  notice  to  miners 
■employed  in  its  mine,  etc.,  the  widow  of  a  miner  residing  in  the  state  and  so 
employed  therein,  unless  employed  wholly  without  the  state,  and  whose  in- 
juries resulting  in  his  death  were  sustained  in  the  course  of  and  resulting  from 
his  employment,  while  temporarily  at  work  in  that  part  of  the  mine  located 
in  an  adjoining  state,  is  entitled  to  participate  in  the  workmen's  compensation 
fund  created  by  such  Act,  notwithstanding  the  language  of  section  25  thereof, 
authorizing  disbursements  of  such  fund  to  employes  who  "shall  have  received 
injuries  in  this  state."    Gooding  v.  Ott  (W,  Va.)  87  S.  E.  863. 

"V^Tiere  an  employe  of  an  employer  doing  business  in  the  state  was  injured 
outside  the  state,  he  was  within  the  protection  of  the  Act.  (Wk.  Comp.  Act,  § 
3,  subd.  4)  Spratt  v.  Sweeney  &  Gray  Co.,  168  App.  Div.  403,  153  N.  Y.  Supp. 
505.  In  this  case  the  court  said:  "The  employer  is  carrying  on  his  business 
in  the  state,  and  the  premiums  required  to  be  paid  by  him  are  based  on  the 
assumption  that  each  of  the  employes  who  are  engaged  in  and  about  his  busi- 
ness are  insured  all  the  time  they  are  acting  within  the  course  of  their  em- 
ployment. The  fact  that  an  employ^  may  from  time  to  time  be  outside  of  the 
state  in  the  course  of  his  employment  does  not  diminish  the  amount  of  pre- 
mium to  be  paid.  The  employer  has  paid  for  the  insurance  of  his  employ§ 
for  all  the  time  he  is  engaged  in  his  work,  and  is  entitled  to  the  benefit  of  that 
insurance.  The  fact,  therefore,  that  the  employer's  contribution  to  the  fund 
is  based  on  the  pay  roll  and  the  number  of  men  employed,  without  regard 
to  the  fact  that  from  time  to  time  some  of  them  work  outside  of  the  state, 
emphasizes  the  fact  that  it  is  immaterial  whether  the  injury  took  place  within 
or  without  the  state,  so  long  as  it  occurred  in  the  course  of  his  employment." 

Where  the  injured  workman  resides  in  California,  and  the  employer  corpora- 
tion is  chartered  in  California  and  doing  business  in  the  state,  and  the  work- 
xaan  is  injured  on  a  ship  belonging  to  the  employer  while  the  ship  is  lying  at 
its  dock  at  a  port  in  Oregon,  the  workman  is  entitled  to  compensation.  Lentz 
-V.  Estabrook  Co.,  2  Cal.  I.  A.  C.  Dec.  205. 


39  ACTS  IN   GENERAL  §    o 

material  under  some  Act,^^  the  New  Jersey  Act  has  been  held  ap- 
plicable to  contracts  made  by  resident  employers  with  nonresident 
employes,*'^  and  under  the  Washington  Act  it  has  been  held  im- 
material that  the  employer  resided  outside  the  state/^  The  Cali- 
fornia Act  has  been  held  inapplicable  to  nonresident  employes  in- 
jured outside  the  state,  though  the  contract  of  hire  was  entered 
into  in  the  state.^^     Where  the  place  of  contracting  and  place  of 

6  8  Where  the  contract  is  made  within  the  state,  and  both  contracting  parties 
reside  within  the  state,  the  commission  has  jurisdiction,  though  the  injury 
occurred  outside  the  state ;  the  Act  being  intended  to  protect  citizens  of  the 
state,  and  the  rights  of  the  parties  being  governed  by  the  law  of  the  place 
where  the  contract  was  made.  Anderson  v.  North  Alaska  Salmon  Co.,  2  Cal. 
I.  A.  C.  Dec.  241.  The  Commission  has  jurisdiction  over  accidents  occurring 
outside  the  state,  where  both  the  employer  and  employe  reside  in  the  state 
and  the  employment  contract  is  made  in  the  state.  Sandberg  v.  Kruse,  1  Cal. 
I,  A.  C.  Dec.  441 ;  Gallagher  v.  Western  Steam  Navigation  Co.,  1  Cal.  I.  A.  C. 
Dec.  525.  The  Iowa  Act  is  broad  enough  to  include  accidents  happening  be- 
yond the  borders  of  the  state,  and  an  employe,  injured  outside  the  state  while 
working  for  an  employer  living  in  the  state  under  a  contract  of  employment 
made  in  Iowa,  can  recover  compensation  under  the  Iowa  Act.  (Code  Supp. 
1913,  title  12,  c.  8A)  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  22. 

Resident  employer. — The  corporation  owning  the  ship  on  which  the  workman 
was  injured  was  chartered  under  the  laws  of  Maine  and  had  a  technical  place 
of  business  in  Maine,  in  which  state  the  ship  was  registered,  but  the  ship  had 
been  built  in  California,  and  prior  to  the  accident  had  never  been  on  the 
Atlantic  coast.  Seventy-five  per  cent,  of  the  business  of  the  ship  was  done 
through  San  Francisco,  and  the  remainder  from  other  Pacific  coast  points. 
The  ship  was  regularly  engaged  in  coast  line  trade,  with  headquarters  at  San 
Francisco  and  51  per  cent,  of  the  stockholders  resided  in  California.  The  ma- 
jority of  the  board  of  directors  and  all  but  one  of  the  corporate  officers  also 
resided  in  California.  The  Commission  held  that  the  employer  was  a  resident 
of  the  state  of  California  for  the  purpose  of  determining  liability  under  the 
Compensation  Act.    Gallagher  v.  Western  Steam  Navigation  Co.,  supra. 

6  8  Davidheiser  v.  Hay  Foundry  &  Iron  Works,  87  N.  J.  Law,  688,  94  Atl.  309, 
affirming  94  Atl.  1103,  and  following  American  Radiator  Co.  v.  Rogge,  87  N.  J. 
Law,  314,  93  Atl.  1083,  aflirming  86  N.  J.  Law,  436,  92  Atl.  85. 

7  0  (Wk.  Comp.  Act  Wash.  §  3)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  5. 

71  Where  a  traveling  salesman  residing  in  the  state  made  a  contract  of  em- 
ployment in  the  state  with  an  employer  residing  in  the  state,  and  thereafter 
moved  to  Utah  and  was  there  injured  in  the  course  of  his  employment,  the 


§  8  workmen's  compensation  40 

injury  are  in  the  same  state,  the  law  of  that  state  g-overns/^  though 
the  employe  lives  and  ordinarily  works  outside  that  state. '^^  The 
Wisconsin  Act  covers  all  accidents  happening  within  the  bounda- 
ries of  the  state,  whether  on  land  or  on  boat.^* 

The  fact  that  the  employer  is  also  liable  for  compensation  under 
the  law  of  the  foreign  state  where  the  accident  occurred  does  not 
prevent  the  California  Act  from  also  applying  where  both  the 
employer  and  employe  reside  in  California  and  the  employment 
contract  was  made  in  that  state,  it  not  being  unusual  for  the  law 
of  two  difTerent  states  to  govern  the  same  transaction.'^^  In  an- 
swer to  the  contention  that  to  give  an  Act  an  extraterritorial  op- 
eration might  permit  a  double  recovery,  the  New  Jersey  court  said : 

California  Act  did  not  apply.  In  a  case  so  holding  (Commissioner  French 
dissenting)  it  was  said:  "While  the  Commission  has  held  informally  that  it 
has  jurisdiction  over  injuries  taking  place  outside  the  exterior  boundaries  of 
the  state  in  those  cases  where  the  contract  of  hire  was  entered  into  within 
the  state,  it  does  not  deem  it  wise  or  prudent  or  fairly  within  the  intent  of  the 
Act  to  seek  to  extend  the  jurisdiction  of  the  Commission  to  take  cognizance 
of  injuries  happening  outside  of  the  state  to  persons  not  residing  within  the 
state,  even  though  the  contract  of  hire  was  entered  into  within  the  state  with 
an  employer  residing  within  the  state.  This  Commission  seeks  jurisdiction 
only  over  citizens  of  the  state."  Croad  v.  ParaOine  Paint  Co.,  1  Cal.  I.  A.  C. 
Dec.  179. 

7  2  Where  an  employe,  suing  in  New  York,  was  hired  and  was  working  in 
New  Jersey  at  the  time  of  his  injury,  his  right  to  recover  was  governed  by  the 
New  Jersey  Act.  Waselewski  v.  Warner  Sugar  Refining  Co.,  87  Misc.  Rep. 
156,  149  N.  Y.  Supp.  1035.  The  New  Jersey  Act  controls  where  the  contract  of 
employment  was  made  in  New  Jersey  and  the  injury  occurred  in  New  Jersey. 
Pensabene  v.  F.  &  J.  Auditore  Co.,  78  Misc.  Rep.  538,  138  N.  Y.  Supp.  947. 

73  Traveling  salesmen,  ordinarily  working  in  other  states  and  living  outside 
of  Minnesota,  though  in  the  employ  of  a  Minnesota  company,  come  under  the 
Minnesota  Workmen's  Compensation  Act  whenever  they  come  within  the  terri- 
tory of  Minnesota,  and,  if  injured  in  an  accident  arising  in  the  course  of 
their  occupation,  they  are  covered  by  the  Minnesota  Act.  Op.  Atty.  Gen.  on 
Minn.  T\Tj.  Comp.  Act,  Bui.  9,  p.  17. 

74  Lewandowski  v.  Crosby  Transportation  Co.,  Rep.  Wis.  Indus.  Com.  1914- 
15,  p.  9. 

75  Sandberg  v.  Kruse,  1  Cal.  I.  A.  C.  Dec.  441. 


41  ACTS  IN  GENERAL  §    8 

"Recovery  of  compensation  in  two  states  is  no  more  illegal,  and  is 
not  necessarily  more  unjust,  than  recovery  upon  two  policies  of 
accident  or  life  insurance."  '^  If  both  the  employer,  the  industry 
being  conducted  outside  the  state,  and  the  injured  employe,  are  non- 
residents, but  the  accident  occurs  in  California,  the  Commission  has 
stated  that  on  grounds  of  comity  it  will  refer  the  case  to  the  do- 
mestic forum  of  the  parties  and  decline  to  try  the  proceedings, 
unless  the  convenience  of  both  litigants  otherwise  requires." 

On  the  theory  that  the  right  to  compensation,  though  contrac- 
tual, rests  on  the  statute  rather  than  on  the  contract  of  employment, 
the  New  Jersey  Act  has  been  held  by  the  New  Jersey  courts  to  apply 
where  the  employment  contract  was  made  in  another  state  and  re- 
quired services  to  be  performed  in  New  Jersey  where  the  injury 
was  received, ^^  the  court  saying:  "The  Workmen's  Compensation 
Act  indicates  a  public  policy  of  the  state,  which  will  be  enforced 
even  as  against  a  contract  made  in  another  state."  ^" 

In  a  New  York  case  it  was  held  that,  where  an  employer  having 
an  office  in  New  York  was  insured  under  the  Workmen's  Compen- 
sation Act  as  to  employes  working  in  that  state,  th'e  payroll  on 
work  done  outside  the  state  being  used  as  a  basis  for  such  insurance, 

7  6  Riounsaville  v.  Central  R.  Co.,  87  N.  J.  Law,  371,  94  Atl.  392. 

7  7  Sandberg  v.  Kruse,  1  Cal.  I.  A.  C.  Dec.  441. 

7  8  Where  a  servant  employed  in  New  York  died  in  New  Jersey  of  injuries 
received  there,  compensation  was  properly  awarded  under  the  New  Jersey 
Act;  the  right  to  compensation  resting  on  the  statute  rather  than  on  the  con- 
tract of  employment.  The  liability  is  indeed  contractual  in  nature  by  force 
of  the  very  terms  of  the  statute,  but  it  is  not  the  result  of  an  express  agree- 
ment between  the  parties ;  it  is  an  agreement,  implied  by  the  law,  of  a  class 
commonly  known  as  "quasi  contracts."  American  Radiator  Co.  v.  Rogge,  86  N. 
J.  Law,  436,  92  Atl.  85. 

7  9  American  Radiator  Co.  v.  Rogge,  86  N.  J.  Law,  436,  92  Atl.  85,  94  Atl.  85, 
affirmed  in  87  N.  J.  Law,  314,  93  Atl.  1083;  Davidheiser  v.  Hay  Foundry  & 
Iron  Works,  87  N.  J.  Law,  688,  94  Atl.  309. 

The  New  Jersey  Act  permits  recovery,  though  the  contract  of  employment 
was  made  in  another  state.  West  Jersey  Trust  Co.  v.  Philadelphia  &  R.  Ry. 
Co.,  88  N.  J.  Law,  102,  95  Atl.  753. 


§  8  workmen's  compensation  42 

and  employed  decedent  outside  the  state  to  work  in  Pennsylvania, 
in  which  state  he  was  killed  in  the  course  of  his  employment, 
the  employment  of  decedent  was  outside  the  state  of  New  York, 
and  therefore  compensation  could  not  be  awarded  under  the  New 
York  Act,  the  court  saying :  "In  this  case  the  decedent  had  not  been 
employed  by  the  appellant  in  the  state  since  1912.  His  employment 
had  not  been  continuous,  but  had  been  from  time  to  time  for  cer- 
tain jobs  which  were  being  performed  entirely  without  the  state. 
The  contract  of  employment  did  not  contemplate  any  work  by  him 
within  the  state;  no  such  work  was  done.  The  statute  in  question 
is  intended  to  regulate  the  relations  between  the  employer  and 
employe  in  hazardous  employments  within  the  state,  and  to  pro- 
tect the  employe  within  the  state  from  the  ordinary  risks  of  the 
employment,  and  to  charge  those  risks  upon  the  ultimate  consumer. 
The  mere  fact  that  an  employe  is  engaged  by  a  resident  of  the  state 
to  go  out  of  the  state  for  service,  and  no  service  in  the  state  is  con- 
templated or  done,  cannot  bring  the  employment  within  the  Act. 
Ordinarily  a  statute  has  no  extraterritorial  effect.  But  where  the 
regular  service  of  the  employe  is  being  performed  in  the  state,  and 
as  an  incident  to  it  he  goes  over  the  state  line  temporarily,  we  have 
held  that  such  temporary  absence  from  the  state  does  not  relieve  the 
employer  from  liability  under  this  statute.  The  relations  between 
the  decedent  and  the  company  with  reference  to  the  work  at  Ford 
City  depended  upon  the  laws  of  the  state  of  Pennsylvania,  and 
the  protection  there  given  to  the  employer  and  the  employe.  The 
mere  fact  that  the  contract  was  made  in  the  state,  if  it  was  made 
in  the  state,  is  not  material  here,  when  we  understand  that  the  con- 
tract related  solely  to  work  to  be  performed  outside  of  the  state. 
It  follows,  therefore,  that  the  employment  of  the  decedent  was  out- 
side of  the  state  of  New  York."  ^°  This  principle  has  been  applied 
by  the  Commission. ^^     A  resident  of  New  Jersey,  injured  by  ac- 

80  Gardener  v.  Horseheads  Const.  Co.,  171  App.  Div.  66,  156  N.  Y.  Supp.  899. 

81  Where,  though  the  contract  of  employment  was  made  in  New  York,  the 
workman  was  a  resident  of,  and  the  accident  happened  in,  West  Virginia,  the 


43  ACTS  IN  GENERAL  §    8 

cident  in  the  course  of  his  employment  in  New  York,  is  entitled  to 
compensation  under  the  New  York  Act,  although  the  contract  of 
hiring  was  made  in  Pennsylvania.^^ 

Since  the  New  Jersey  Act  provides  that  in  case  of  dispute  or 
failure  to  agree  on  a  claim  all  questions  shall  be  submitted  to  the 
court  of  common  pleas  of  that  state  on  petition,  which  petition  shall 
be  answered  and  the  issues  raised  determined  by  that  court,  there- 
by providing  a  forum  wherein  disputes  between  employer  and 
employe  relative  to  compensation  may  be  settled,  a  Supreme  Court 
of  New  York  will  not  assume  jurisdiction  to  enforce  a  claim  under 
the  New  Jersey  Act,®^  though  defendant  is  a  corporation  which  has 
moved  its  place  of  business  to  the  state  of  New  York  and  cannot  be 
personally  served  in  New  Jersey.®* 

An  employe  injured  on  a  river  over  which  two  states  have  con- 
current jurisdiction  may  recover  under  the  Compensation  Act  of 
either  state. ®^  Where  the  federal  government  has  acquired  land 
by  purchase  for  the  construction  of  docks,  forts,  arsenals,  or  other 
buildings,  the  Washington  Act  is  inapplicable  to  works  and  oc- 
cupations carried  on  within  the  confines  of  such  land.*^ 

Commission  of  New  York  liad  no  jurisdiction  to  grant  compensation.  Lloyd 
V.  Power  Specialty  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  9.  Althougli  an 
accident  happening  in  New  York  may  come  under  the  Act,  even  where  the  con- 
tract of  employment  was  made  in  another  state,  for  the  reason  that  the  New 
York  Act  takes  away  the  action  for  damages  for  negligence  for  all  injuries 
received  in  the  state,  where  the  contract  is  made  and  the  accident  happens 
outside  the  state,  this  reason  does  not  apply,  and  the  claim  is  not  under  the 
New  York  Act.    Dissosway  v.  Jallade,  The  Bulletin,  N.  Y,,  vol.  1,  No.  6,  p.  13. 

8  2  Griffiths  V.  American  Bitumastic  Enamels  Co.,  The  Bulletin,  N.  Y.,  vol. 
1,  No.  7,  p.  8. 

83  McCarthy  v.  McAllister  Steamboat  Co.,  94  Misc.  Rep.  G92,  158  N.  Y. 
Supp.  563. 

8  4  Lehmann  v.  Ramo  Films,  92  INIisc.  Rep.  418,  155  N.  Y.  Supp.  1032. 

8  5  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  16. 

86  Wk.  Comp.  Act  Wash.  §  17;    Opinion  Atty.  Gen.  Sept.  20,  1911. 


§  9  workmen's  compensation  44 

§  9.     Admiralty  jurisdiction 

According-  to  the  courts  of  Connecticut  and  New  York,  a  proceed- 
ing to  recover  under  a  Workmen's  Compensation  Act  is  a  personal 
action,  and  not  one  in  rem,  and  therefore  not  one  of  which  admiralty 
courts  have  exclusive  jurisdiction  where  the  injuries  occur  on  the 
high  seas  or  navigable  waters.^^  It  has  been  held  by  a  federal  court 
that,  while  the  Washington  Act  does  not^®  and  cannot  take  from 
an  injured  workman  his  right  to  proceed  in  admiralty  by  abol- 
ishing his  right  to  pursue  a  common-law  remedy  for  injury,^®  yet, 
where  the  workman  takes  the  benefit  of  this  Act,  which  is  pro- 
vided in  lieu  of  his  common-law  remedy,  he  cannot  thereafter  pur- 
sue his  remedy  in  admiralty.'^*'  The  Washington  Supreme  Court 
has  held  that  a  Compensation  Act  cannot  be  permitted  to  encroach 
on  the  admiralty  jurisdiction  of  the  federal  court,  or  make  the  own- 
ers of  a  vessel  liable,  where  it  is  not  claimed  that  they  have  been  at 
fault,  beyond  the  limits  prescribed  by  the  federal  statutes.®^     Ac- 

8  7  Kennerson  v.  Thames  Towboat  Co.,  89  Conn.  367,  94  Atl.  372,  L,  R.  A. 
1916A,  43G.  Citing  Knapp,  Stout  &  Co.  v.  McCafErey,  177  U.  S.  638,  643,  648, 
20  Sup.  Ct.  824,  44  L.  Ed.  921 ;  Schoonmaker  v.  Gilmore,  102  U.  S.  118,  26  L. 
Ed.  95 ;  Leon  v.  Galceran,  11  Wall.  185,  20  L.  Ed.  74 ;  The  Belfast,  7  Wall. 
624,  19  L.  Ed.  266 ;  The  Hine  v.  Trevor,  4  Wall.  555,  567,  568,  18  L.  Ed.  451 ; 
Manchester  v.  Mass.,  139  U.  S.  240,  11  Sup.  Ct.  559,  35  L.  Ed.  159.  An  acci- 
dent occurring  on  a  navigable  river  vpas  within  the  jurisdiction  of  the  New 
York  Act     In  re  Walker,  215  N.  Y.  529,  109  N.  E.  604,  Ann.  Cas.  1916B,  87. 

The  provision  of  the  New  York  Act  that  compensation  shall  be  the  exclu- 
sive liability,  and  in  place  of  all  other  liability,  extends  only  to  suits  at  com- 
mon law ;  and  where  the  circumstances  of  the  case  bring  it  under  the  Act, 
and  also  under  admiralty  jurisdiction,  the  employ^  may  choose  which  remedy 
he  will  pursue.  Walker  v.  Clyde  S.  S.  Co.,  215  N.  Y.  529,  109  N.  E.  604,  Ann. 
Cas.  1916B,  87. 

8  8  The  Washington  Act  does  not  withdraw  from  a  workman  who  is  injured 
on  a  vessel  his  remedy  to  proceed  against  the  vessel  in  admiralty  for  the  wrong 
sustained.    The  Fred  E.  Sanders  (D.  C.)  208  Fed.  724. 

89  Id. 

90  Id. 

»i  State  V.  Daggett,  87  Wash.  253,  151  Pac.  648,  L.  R.  A.  1916A,  446. 


45  ACTS   IN  GENERAL  §    10 

cording  to  a  federal  decision,  an  action  brought  for  compensation 
under  the  New  Jersey  Act,  not  being  an  action  for  tort  or  one  based 
on  negligence,  was  one  of  which  the  state  courts  had  at  least  con- 
current jurisdiction  with  the  federal  courts  sitting  in  admiralty, 
and  the  state  court  having  first  acquired  jurisdiction,  the  cause  was 
not  removable  as  one  of  admiralty  and  maritime  jurisdiction.^^ 

When  the  action  is  brought  in  a  state  court  and  is  maintainable 
therein,  it  must  be  determined  according  to  state  laws  and  not  ac- 
cording to  the  laws  of  admiralty.^* 

§  10.     Interstate  commerce 

In  the  absence  of  any  decision  on  the  question  by  the  United 
States  Supreme  Court,  and  in  view  of  the  conflict  between  the  de- 
cisions of  other  courts,  the  question  of  the  extent  to  which,  if  any, 
the  state  Compensation  Acts  may  apply  to  employes  of  interstate 
carriers  by  railroad,  without  conflicting  with  the  federal  Employers' 
Liability  Act,  cannot  be  answered  with  any  show  of  authority, 
otherwise  than  by  calling  attention  to  and  contrasting  these  con- 
flicting decisions.  Attempts  to  formulate  any  general  rule  by  which 
these  decisions  may  be  tested  and  satisfactorily  reconciled,  meet 
with  failure.  However,  it  may  be  stated  on  positive  authority 
that,  where  Congress  has  not  entered  the  particular  field  and 
thereby  excluded  state  action,  a  state  law  is  within  the  state's  ju- 
risdiction, though  it  indirectly  aft'ects  interstate  and  foreign  com- 
merce, and  that  it  remains  so  until   Congress  enters  the  field.^* 

92  Berton  v.  Tietken,  etc.,  L.  Dry  Dock  Co.  (D.  C.)  219  Fed.  763. 

93  Linclstrom  v.  Mutual  S.  S.  Co.  (Minn.)  156  N.  W.  669. 

9  4  Jensen  v.  Southern  Pac.  Co.,  215  N.  Y.  514,  109  N.  E.  600,  L.  R.  A. 
1916A,  403,  Ann.  Cas.  1916B,  276;  Sherlock  v.  Ailing,  93  U.  S.  99,  23  L. 
Ed.  819;  Morgan's  Steamship  Co.  v.  Board  of  Health,  118  U.  S.  455,  6  Sup. 
Ct.  1114,  30  L.  Ed.  237 ;  Reid  v.  Colorado,  187  U.  S.  137,  23  Sup.  Ct  92,  47 
L.  Ed.  108;  Simpson  v.  Shepard,  230  U.  S.  352,  33  Sup.  Ct.  729,  57  L.  Ed. 
1511,  48  L.  R.  A.  (N.  S.)  1151,  Ann.  Cas.  1916A,  18 ;  Erie  R.  R.  Co.  v.  Williams, 
233  U.  S.  685,  34  Sup.  Ct.  761,  58  L.  Ed.  1155,  51  L.  R.  A.  (N.  S.)  1097. 


§  10  workmen's  compensation  46 

The  jurisdiction  of  Congress  over  interstate  commerce,  and  thus 
over  remedies  against  employers  therein  for  injuries  sustained  by 
employes  while  engaged  in  such  commerce,  is  paramount,  and, 
since  Congress  in  the  Employers'  Liability  Act  has  fixed  the  em- 
ployer's liability  in  cases  where  the  act  is  caused  by  his  own  negli- 
gence, that  Act  is  the  exclusive  remedy  in  such  cases  at  least,  and 
the  state  Act  does  not  apply. ^^  The  Act  of  Congress  does  not  apply, 
of  course,  where  the  parties  are  not  in  any  wise  engaged  in  inter- 
state commerce.^® 

95  Grand'  Trunk  Ry.  Co.  of  Canada  v.  Knapp  (C.  C.  A.)  233  Fed.  950. 

96  Blauvelt  v.  Chicago  &  A.  K.  Co.,  Bulletin  No.  1,  111.,  p.  181. 
Employes  not  enc/aged  in  interstate  commerce. — An  employ^   repairing  a 

car  used  indiscriminately  for  intrastate  and  interstate  commerce,  in  a  car 
shop  in  New  York,  is  not  engaged  in  interstate  commerce;  his  status  being 
determined  by  the  character  of  the  work  done  at  the  time  of  the  injury.  Par- 
sons V.  Delaware  &  Hudson  Co.,  167  App.  Div.  536,  153  N.  Y.  Supp.  170.  A 
railroad  watchman  employed  to  guard  property  and  tools  and  materials  used 
in  building  a  new  station  and  laying  new  tracks,  which  when  finished  were  to 
be  used  in  interstate  commerce,  was  not  engaged  in  interstate  commerce, 
and  was  entitled  to  compensation.  White  v.  New  York  Central  R.  R.,  2  N.  Y. 
St.  Dep.  Rep.  477.  Where  an  employe  at  the  time  of  his  injury  was  engaged 
in  uncoupling  cars  on  a  railroad  which  operated  exclusively  and  entirely  with- 
in the  state,  the  fact  that  the  railroad  sometimes  carried  interstate  baggage 
and  passengers,  though  always  within  the  state,  did  not  make  the  employ^ 
a  workman  engaged  in  interstate  commerce.  Fairchild  v.  Pennsylvania  R.  R. 
Co.,  170  App.  Div.  135,  155  N.  Y,  Supp.  751.  An  employe,  working  in  a  rail- 
road car  shop  maintained  and  operated  entirely  within  the  state,  was  not 
engaged  in  interstate  commerce,  although  the  cars  repaired,  and  the  car 
on  which  he  was  working  at  the  time  of  the  accident,  were  used  in  both 
intrastate  and  interstate  commerce.  Okrzsezs  v.  Lehigh  Valley  R.  Co.,  170 
App.  Div.  15,  155  N.  Y.  Supp.  919.  Illinois. — ^A  private  watchman  employed 
by  a  railroad  company,  whose  duty  was  to  make  the  rounds  of  the  yards, 
inspecting  the  freight  house  and  various  portions  of  yards,  keep  improper  per- 
sons off  the  premises,  and  prevent  stealing  from  cars,  and  who  had  power 
to  arrest  in  cases  of  necessity,  who  was  injured  in  the  performance  of  his 
duty,  was  entitled  to  compensation  under  the  Workmen's  Compensation  Act  of 
Illinois.  Bassett  v.  Chicago,  R.  I.  &  P.  Ry.  Co.,  Bulletin  No.  1,  111.,  p.  120. 
The  fact  that  along  the  line  of  a  particular  train  of  a  railroad  there  was 
merchandise  of  an  interstate  character  to  be  handled,  and  that  just  prior  to 
the  occurrence  of  the  accident  the  crew  and  train  had  been  handling  inter- 


47  ACTS  IN  GENERAL  §    10 

The  New  York  Act  has  been  held  to  apply,  so  far  as  it  may 
without  interfering  with  any  act  of  Congress,  to  injuries  received 
by  an  employe  in  interstate  commerce.  The  highest  court  of  the 
state  said :  "The  statute  does  not  purport  directly  to  regulate  or 
impose  a  burden  upon  commerce,  but  merely  undertakes  to  regulate 
the  relations  between  employers  and  employes  in  this  state.  Such 
regulation  may,  and  no  doubt  does,  indirectly  affect  commerce, 
but  to  the  extent  that  it  may  affect  interstate  or  foreign  commerce 
it  is  plainly  within  the  jurisdiction  of  the  state,  until  Congress  by 
entering  the  field  excludes  state  action."  ^^    It  was  further  held  that 

state  packages  or  cars,  and  that  it  was  their  custom  to  handle  whatever 
merchandise  was  delivered  to  them,  whether  interstate  or  otherwise,  does  not 
stamp  such  train  and  its  employes  as  engaged  in  interstate  commerce.  Blau- 
velt  V,  Chicago  &  A.  R.  Co.,  Bulletin  No.  1,  111.,  p.  181. 

9  7  Jensen  v.  Southern  Pac.  Co.,  215  N.  Y.  514,  109  N.  E.  600,  L.  R.  A.  1916A, 
403,  Ann.  Cas.  1916B,  276.  "Literally  construed,  section  114  makes  the  stat- 
ute apply  only  to  intrastate  work,  either  done  by  itself  or  in  connection  with, 
but  clearly  separable  and  distinguishable  from,  interstate  or  ^  foreign  com- 
merce. But,  though  the  section  is  awkwardly  phrased,  it  is  manifest  that  a 
broader  application  was  intended,  else  the  clause  'for  whom  a  rule  of  liabili- 
ty or  method  of  compensation  has  been  or  may  be  established  by  the  Congress 
of  the  United  States'  is  meaningless.  The  Legislature  evidently  intended  to 
regulate,  as  far  as  it  had  the  power,  all  employments  within  the  state  of 
the  kinds  enumerated.  The  earlier  sections  are  in  terms  of  general  appli- 
cation, and  section  114,  which  is  headed  'Intrastate  Commerce,'  is  one  of 
limitation,  not  of  definition.  Its  obvious  purpose  was  to  guard  against  a 
construction  violative  of  the  Constitution  of  the  United  States,  and  so  it  pi*o- 
vided  that  the  act  should  apply  to  interstate  or  foreign  commerce,  'for  whom 
a  rule  of  liability  or  method  of  compensation  has  been  or  may  be  established 
by  the  Congress  of  the  United  States,'  only  to  the  extent  that  intrastate  work 
affected  may  or  shall  be  clearly  separable  or  distinguishable  therefrom.  In 
other  words,  the  Legislature  said  that  it  did  not  intend  to  enter  any  field 
from  where  it  had  been  or  should  be  excluded  by  the  action  of  the  Congress  of 
the  United  States.  But  it  is  said  that  Congress  may  at  any  time  regulate  em- 
ployments in  interstate  or  foreign  commerce,  and  that  the  case  is  one  to  which 
a  rule  'may  be  established,'  etc.  Again,  the  spirit,  not  the  letter,  must  con- 
trol. If  it  had  been  intended  to  confine  the  application  of  the  act  to  intra- 
state work,  the  Legislature  would  doubtless  have  said  so  in  a  sentence.  The 
words  'may  be'  should  be  construed  in  the  sense  of  'shall  be.'  "  Id.  The 
remedy  given  by  the  federal  Employers'  Liability  Act  is  not  exclusive  for  all 


§  10  workmen's  compensation  48 

since  the  present  federal  statute  applies  only  to  carriers  by  rail- 
road, not  carriers  by  water,  the  New  York  Act  applied  where  an 
employe  was  killed  while  unloading  a  steamship  belonging  to  a 
railroad  company,  but  not  shown  to  have  been  operated  in  any 
way  in  connection  with  the  company's  railroad  line.®^  This  power 
of  the  state  to  legislate  in  regard  to  injuries  occurring  in  interstate 
commerce  by  water,  in  view  of  the  failure  of  Congress  to  legis- 
late thereon,  has  also  been  recognized  in  decisions  construing  the 
Connecticut,  Minnesota,  and  Washington  Acts.®^  The  New  Jersey 
courts  lay  down  the  same  rule  as  do  the  New  York  courts,  which 
hold  that  the  federal  Employers'  Liability  Act  is  not  exclusive,^ 
and  that  the  states,  in  the  exercise  of  their  police  power,  may  make 
such  laws  and  regulations  for  the  protection  of  the  laborers  within 
the  state  as  may  seem  best,  unhampered  by  the  federal  statute, 
except  so  far  as  they  attempt  to  prescribe  a  liability  for  negligence 
or  the  remedies  therefor  in  interstate  commerce.  Workmen's  Com- 
pensation Acts,  such  as  those  of  New  York  and  New  Jersey,  come 

injuries  to  the  employes  of  a  railroad  corporation  engaged  in  interstate  com- 
merce, but  only  in  case  there  is  either  an  admission  or  proof  that  the  accident 
was  occasioned  by  the  negligence  of  the  interstate  carrier.     Buell  v.  N.  T. 
C.  &  H.  R.  R.  R.  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  5,  p.  12. 
8  8  Id. 

99  Kennerson  v.  Thames  Towboat  Co.,  89  Conn.  3G7,  94  Atl.  372,  L.  R.  A. 
1916A,  436.  In  Miller  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec. 
349,  it  was  held  that  where  the  employer  and  employg  were  both  under  the 
Connecticut  Act,  though  engaged  in  interstate  commerce,  recovery  might  be 
had  under  that  Act,  since  the  federal  Employers'  Liability  Act  did  not  provide 
compensation  such  as  was  given  under  that  Act.  Sess.  Laws  Wash.  1911,  c. 
74,  §  18,  extends  to  workmen  employed  in  interstate  commerce  by  water,  in  the 
absence  of  congressional  legislation  on  the  subject.  Stoll  v.  Pacific  Coast 
S.  S.  Co.  (D.  C.)  205  Fed.  169.  That  the  Minnesota  Act  applies  to  interstate 
commerce  by  water  does  not  invalidate  it  as  an  interference  with  interstate 
commerce.  Congress  has  not  legislated  upon  that  subject  as  to  interstate  com- 
merce by  water,  and  until  it  does  so  such  legislation  is  within  the  province 
of  the  several  states.    Lindstrom  v.  Mutual  S.  S.  Co.  (Minn.)  156  N.  W.  669. 

1  Rounsaville  v.  Cent.  R.  Co.,  87  N.  J.  Law,  371,  94  Atl.  392 ;  West  Jersey 
Trust  Co.  V.  Philadelphia  &  R.  Ry.  Co.,  88  N,  J.  Law,  102,  95  Atl.  753. 


49  ACTS  IN  GENERAL  §    10 

within  this  rule.  They  have  no  reference  to  the  question  of  negli- 
gence of  the  employer  and  create  no  liability  or  remedy  for  negli- 
gence.2  For  the  federal  Employers'  Liability  Act  to  oust  the  court 
of  common  pleas  of  jurisdiction  in  a  proceeding  under  the  New  Jer- 
sey Act,  it  must  affirmatively  appear  either  in  the  pleadings  or  the 
proof  that  a  right  of  action  is  given  by  the  federal  statute.  It  must 
appear  that  the  workman's  death  or  injury  resulted  in  whole  or  in 
part  from  negligence  chargeable  to  an  employer  in  an  employment 
within  the  federal  Act.^ 

The  Supreme  Court  of  Errors  of  Connecticut  held  that  a  pro- 
vision of  the  Compensation  Act  of  that  state,  excepting  injuries 
arising  in  interstate  or  foreign  commerce,  did  not  apply  where  an 
employe  was  drowned  in  consequence  of  the  foundering  of  a  tug, 
without  negligence,  in  the  navigable  v^^aters  of  New  Jersey.  The 
court  said:  "Presumably  section  40  and  similar  provisions  in  other 
Compensation  Acts  have  reference  to  the  federal  Employers'  Lia- 
bility Act.  Where  the  injury  arises  from  a  cause  not  ^covered  by 
the  federal  Act,  this  section  does  not  apply.  To  come  within  the 
federal  Act  there  must  be  interstate  traffic,  interstate  employment, 
and  negligence.  Though  the  first  two  conditions  be  present  in  this 
proceeding,  the  latter  is  not."  ^  The  Minnesota  Act,  being  gen- 
eral in  its  terms,  applies  to  all  cases  within  the  territorial  jurisdic- 
tion of  the  state  save  those  expressly  excepted.  It  excepts  cases 
arising  from  interstate  commerce  by  railroad,  but  not  those  aris- 
ing from  interstate  commerce  by  water.^     The  Ohio  Act,  though 

2  Windfield  v.  New  York  Cent.  &  H.  R.  R.  Co.,  168  App.  Div.  351,  153  N.  T. 
Supp.  499;  Rounsaville  v.  Central  R.  Co.,  87  N.  J.  Law,  371,  94  Atl.  392; 
Hammill  v.  Pennsylvania  R.  Co.,  87  N.  J.  Law,  388,  94  Atl.  313;  Grybowski 
V.  Erie  R.  Co.,  88  N.  J.  Law,  1,  95  Atl.  764. 

3  Lynch  v.  Pennsylvania  R.  R.  Co.,  88  N.  J.  Law,  408,  96  Atl.  395. 

4  Kennerson  v.  Thames  Towboat  Co.,  89  Conn.  367,  94  Atl.  372,  L.  R.  A. 
1916A,  436. 

5  Lindstrom  v.  Mutual  S.  S.  Co.  (Minn.)  156  N.  W.  669.  Registered  vessels 
(tugs  and  scows)  engaged  in  commerce  on  the  Great  Lakes,  hailing  from  Du- 
luth,  doing  both  intrastate  and  interstate  work  under  the  United  States  nav- 

HON.COMP. — 4 


§  10  workmen's  compensation  50 

not  applying  to  employers  and  their  employes  engaged  exclusively 
in  interstate  commerce,  applies  to  those  engaged  in  both  interstate 
and  intrastate  commerce  to  the  extent  that  their  mutual  connec- 
tion with  intrastate  work  is  clearly  separable  and  distinguishable 
from  interstate  and  foreign  commerce,  but  only  on  the  election  of 
the  employer  and  employe  to  be  governed  by  its  provisions.® 

The  position  of  those  courts  holding  that  the  entire  field  of  re- 
covery for  injuries  received  by  employes  engaged  in  interstate  com- 

igation  laws,  registered  at  the  United  States  customs  office,  and  operating 
partly  in  Canadian  waters,  whose  emploj'es  live  in  Minnesota  and  other  states, 
are  within  the  provisions  of  the  Minnesota  Compensation  Act  so  far  as 
regards  injuries  received  in  the  state  of  Minnesota,  since  there  is  no  federal 
Compensation  Act  applying  to  workman  on  vessels.  Op.  Atty.  Gen.  on  Minn. 
Wk.  Comp.  Act,  Bui.  9,  p.  15.  Employes  on  a  pleasure  boat  used  exclusively 
for  private  purposes,  and  licensed  on  the  Mississippi  river  between  St.  Paul 
and  New  Orleans,  are  within  the  provisions  of  the  Minnesota  Workmen's 
Compensation  Act  for  all  injuries  which  occur  while  the  boat  is  on  a  portion 
of  the  river  within  the  boundaries  of  the  state  of  Minnesota.    Id. 

The  employes  of  a  carrier  engaged  in  interstate  commerce  are  excluded 
from  the  provisions  of  the  Act,  although  the  work  of  the  particular  workman 
injured  may  have  been  entirely  within  the  state.  (Gen.  Laws  1913,  c.  467, 
§  8;  Gen.  St.  1913,  §  8202)  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9, 
p.  19.  Any  and  all  employes  of  a  railroad  engaged  in  interstate  commerce  are 
excluded  from  the  provisions  of  the  Act,  and  the  employ§s  in  a  local  shop  are 
not  an  exception  to  this  rule.  (Gen.  Laws  1913,  c.  467,  §  8 ;  Gen.  St.  1913,  § 
8202).  Id.  The  criterion  to  follow,  in  construing  this  law,  especially  section 
8,  is:  Is  the  employer  engaged  in  interstate  or  foreign  commerce?  This  ex- 
ception would  apply  to  both  the  employer  and  employe,  no  matter  what  may 
be  the  character  of  the  work  done  by  the  employe.  Id.  p.  20.  The  Minnesota 
Workmen's  Compensation  Act  does  not  apply  to  a  man  who  works  for  a  con- 
tractor doing  grading  work  on  an  interstate  railroad  already  in  use,  the  work 
consisting  of  surfacing  the  old  line,  since  the  man  would  be  engaged  in  inter- 
state commerce.     Id. 

6  Connote  v.  Norfolk  &  W.  Ry.  Co.  (D.  C.)  216  Fed.  823.  103  Ohio  L.  p.  90, 
§  51,  with  certain  changes,  is  the  same  as  section  6604 — 18  of  the  Washing- 
ton statute  (3  Rem.  &  Bal.  Code,  1913).  One  change  is  the  substitute  of  the 
words  "and  then  only  when"  for  the  words  "except  that  any  such."  The 
words  in  the  Washington  Act  enlarge  the  class  of  persons  to  whom  the  act 
may  apply,  whereas  the  Ohio  Act  restricts  such  class.  The  one  extends  the 
application  of  the  statute,  and  the  other  limits  it.    Id. 


51  ACTS  IN  GENERAL  §    10 

merce  is  covered  by  the  federal  Employers'  Liability  Act,  and  that 
therefore  there  is  no  room  for  the  application  of  a  state  Compensa- 
tion Act  to  such  injuries,  is  well  stated  in  a  decision  of  the  Illinois 
Supreme  Court  holding  the  Illinois  Act  inapplicable  in  such  cases.^ 
The  same  position  has  been  taken  by  the  Supreme  Court  of  Cal- 
ifornia,^ and  in  numerous  instances  the  Industrial  Accident  Com- 

7  Staley  v.  Illinois  Central  R.  Co.,  268  111.  356,  109  N.  E.  342,  L.  R,  A.  1916A, 
450. 

s  The  Commission  lias  no  jurisdiction  to  award  compensation  where  the 
workman  at  time  of  injury  was  engaged  in  work  directly  relating  to  inter- 
state commerce,  since,  in  such  case,  the  federal  Employers'  Liability  Act  would 
control.  Smith  v.  Indus.  Ace.  Com.  of  Cal.,  2  Cal.  I.  A.  C.  Dec.  439,  26  Cal. 
App.  560,  147  Pac.  601.  WJiere  a  railroad  watchman  was  accidentally  injured 
from  the  discharge  of  his  revolver  while  he  was  driving  trespassers  from 
the  company's  property  after  he  had  'boarded  and  driven  them  from  an  inter- 
state train,  he  was  engaged  in  an  act  relating  to  interstate  commerce,  and  not 
within  the  California  Act.  Id.  Where  a  truck  builder  and  truck  repairer 
employed  in  a  railroad  roundhouse  was  killed  while  repairing  a  switch  engine 
used  in  both  interstate  and  intrastate  commerce,  the  California  Commission 
had  no  jurisdiction,  though  the  engine  had  been  temporarily  withdrawn  from 
service  at  the  time  of  the  injury,  but  was  returned  three  days  after  the  acci- 
dent. Southern  Pacific  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  443,  170  Cal.  782, 
151  Pac.  277.  The  California  Commission  has  no  jurisdiction  of  an  applica- 
tion for  compensation  for  injuries  sustained  by  an  employe  of  a  railroad 
engaged  in  both  interstate  and  intrastate  commerce,  where  at  the  time  of  the 
injury  he  was  engaged  in  interstate  business;  the  federal  Employers'  Lia- 
bility Act  controlling  such  case.    Id. 

In  Smith  v.  Indus.  Ace.  Com.,  supra,  the  court  quoted  from  opinions  by 
Marshall,  C.  J.,  and  Lurton,  J.,  as  follows:  "If  any  one  proposition  could  com- 
mand the  universal  assent  of  mankind,  we  might  expect  it  would  be  this: 
That  the  government  of  the  Union,  though  limited  in  its  powers,  is  supreme 
within  its  sphere  of  action.  This  would  seem  to  result  necessarily  from  its 
nature.  It  is  the  government  of  all;  its  powers  are  delegated  by  all;  it  rep- 
resents all,  and  acts  for  all.  Though  any  one  state  may  be  willing  to  control 
its  operations,  no  state  is  willing  to  allow  others  to  control  them.  The  nation, 
on  those  subjects  on  which  it  can  act,  must  necessarily  bind  its  component 
parts.  But  this  question  is  not  left  to  mere  reason.  The  people  have,  in  ex- 
press terms,  decided  it,  by  saying,  'This  Constitution,  and  the  laws  of  the 
United  States,  which  shall  he  made  in  pursuance  thereof,  shall  be  the  supreme 
law  of  the  land,'  and  by  requiring  that  the  members  of  the  state  Legislature, 
and  the  officers  of  the  executive  and  judicial  departments  of  the  states,  shall 


§  10  workmen's  compensation  52 

mission  of  that  state,  after  determining  that  the  injury  occurred 
in  interstate  commerce  affected  by  the  federal  Employers'  Liability 
Act,  has  refused  to  award  compensation.^    Injuries  to  an  employe, 

take  the  oath  of  fidelity  to  it.  The  governmeDt  of  the  United  States,  then, 
though  limited  in  its  powers,  is  supreme;  and  its  laws,  when  made  in  pur- 
suance of  the  Constitution,  form  the  supreme  law  of  the  land,  'anything  in  the 
Constitution  or  laws  of  any  state  to  the  contrary  notwithstanding' " — quoting 
Chief  Justice  Marshall,  in  McCulloch  v.  Maryland,  4  Wheat.  316,  4  L.  Ed.  570. 
"By  this  act  Congress  has  undertaken  to  cover  the  subject  of  the  liability  of 
railroad  companies  to  their  employes,  injured  while  engaged  in  interstate 
commerce.  This  exertion  of  a  power  which  is  granted  in  express  terms  must 
supersede  all  legislation  over  the  same  subject  by  the  states.  *  *  *  it 
*  *  *  follows  that  in  respect  of  state  legislation  prescribing  the  liability  of 
such  carriers  for  injuries  to  their  employes  while  engaged  in  interstate  com- 
merce this  act  is  paramount  and  exclusive"— quoting  Lurton,  J.,  in  Michigan 
Central  R.  R.  Co.  v.  Vreeland,  227  U.  S.  59,  33  Sup.  Ct.  192,  57  L.  Ed.  417,  Ann. 
Cas.  1914C,  176.  The  court  also  quoted  language  to  the  same  effect  from 
Mondou  V.  New  York,  New  Haven  &  Hartford  R.  R.  Co.,  223  U.  S.  1,  32  Sup. 
Ct.  1U9,  56  L.  Ed.  327,  38  L.  R.  A.  (N.  S.)  44,  and  Seaboard  Air  Line  R.  Co.  v. 
Horton,  233  U.  S.  501,  34  Sup.  Ct.  G3S,  58  L.  Ed.  1068,  L.  R.  A.  1915C,  1,  Ann 
Cas.  1915B,  475. 

9  Where  a  brakeman  employed  in  interstate  and  intrastate  commerce  was 
attacked  by  tramps  and  killed  while  lie  was  working  on  a  through  freight 
train,  the  California  Act  did  not  apply.  Lutze  v.  Atchison,  Topeka  &  Santa 
Fe  liy.  Co.,  2  Cal.  I,  A.  C.  Dec.  739.  Johnson  v.  Southern  Pacific  Co ,  2  Cal 
I.  A.  C.  Dec.  738. 

CaUfornia  Act  held  inapplicable  since  the  ivorkman  teas  injured  while  en- 
gaged in  interstate  commerce.— \\\iQVQ  an  employ^,  working  in  the  repair  shop 
of  a  railroad  engaged  in  interstate  and  intrastate  business,  is  injured  while 
repairing  a  locomotive.  Reamer  v.  Southern  Pacific  Co.,  2  Cal.  I.  A.  C.  Dec. 
737.  Where  a  car  inspector,  in  the  employment  of  a  railroad  engaged  in  both 
interstate  and  intrastate  commerce,  was  injured  while  coupling  the  air  hose 
of  a  freight  train  carrying  some  cars  destined  for  points  outside  the  state. 
Bridge  V.  Southern  Pacific  Co.,  2  Cal.  I.  A.  C.  Dec.  736.  Where  a  mechanic,  in 
the  employment  of  a  railroad  engaged  in  interstate  and  intrastate  commerce, 
is  injured  by  a  fall  from  a  locomotive  upon  which  he  is  working  in  a  round- 
house of  the  railroad.  Donaldson  v.  Atchison,  Topeka  &  Santa  Fe  Ry.  Co.,  2 
Cal.  I.  A.  C.  Dec.  699.  Where  a  section  hand  is  injured  while  working  upon 
the  tracks  of  a  railroad  engaged  in  interstate  and  intrastate  business.  Harris 
V.  Western  Pacific  Ry.  Co.,  2  Cal.  I.  A.  C.  Dec.  697.  Where  it  appeared  that 
the  injured  man  was  a  watchman  in  the  employ  of  an  interstate  railway,  and 
at  the  time  of  accident  was  weighing  freight  cars  of  an  interstate  character. 


53  ACTS  IN  GENERAL  §    10 

the  scope  of  whose  employment  concerns  both  intrastate  and  m- 
terstate   commerce,    are    compensable    under    this   Act,    however, 

Keast  V.  Santa  F§.  Ry.  Co.,  2  Cal.  I.  A.  O.  Dec.  694.  Where  it  appeared  that 
the  applicant  was  engaged  at  the  time  of  the  accident  in  the  repair  of  a  bridge, 
which  was  a  portion  of  the  main  line  of  an  interstate  railway.  Sandberg  v. 
San  Pedro,  Los  Angeles  &  Salt  Lake  R.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  694.  Where 
an  employe  of  the  Santa  Fe  Railway  was  injured  while  engaged  in  the  repair 
of  a  bridge  used  by  the  Santa  Fe  Railway  in  its  interstate  business.  Batten- 
field  V.  Atchison,  Topeka  &  Santa  Fg  Ry.  Co.,  2  Cal.  I.  A.  C.  Dec.  6SS.  Where 
an  employe  of  the  Southern  Pacific  Company,  2  Cal.  I.  A.  C.  Dec.  969.  Where 
an  employ  §  of  the  Santa  F6  Railway,  while  engaged  in  loading  timbers  in- 
tended for  the  repair  of  stockyards  used  by  said  railway  to  confine  live  stock 
shipped  to  and  from  points  both  interstate  and  intrastate,  was  injured  by  a 
falling  timber.  Hummer  v.  Hennings,  2  Cal.  I.  A.  C.  Dec.  859.  Where  an 
employe  of  the  Southern  Pacific  Company  was  injured  while  engaged  in  repair 
work  on  a  bridge,  part  of  the  main  line  of  the  railway  used  in  the  interstate 
business  of  the  defendant.  McCarthy  v.  Southern  Pacific  Co.,  2  Cal.  I.  A.  C. 
Dec.  780.  Where  an  employe  of  the  Southern  Pacific  Company  was  injured 
while  engaged  in  switching  cars  of  a  train,  some  of  the  cars  of  >  which  were 
used  in  interstate  business  of  the  defendant.  McCarthy  v.  Southern  Pacific 
Co.,  2  Cal.  I.  A.  C.  Dec.  752.  Where  it  appeared  that  at  the  time  of  the  acci- 
dent the  employe  was  a  section  hand,  and  was  being  carried  on  a  hand  car 
from  one  point  to  another  on  the  line  used  for  interstate  commerce  of  the  rail- 
way. Moreno  v.  San  Pedro,  Los  Angeles  &  Salt  Lake  R.  R.  Co.,  2  Cal.  I.  A.  C. 
Dec.  754.  Where  it  appeared  that  the  injured  employe  was  at  the  time  of  the 
accident  doing  work  in  the  construction  of  a  bridge  on  a  branch  of  a  railway 
used  for  interstate  traffic.  Walde  v.  San  Pedro,  Los  Angeles  &  Salt  Lake  Ry. 
Co.,  2  Cal.  I.  A.  C.  Dec.  751.  Where  an  employ^  of  the  Southern  Pacific  Com- 
pany was  injured  while  engaged  in  the  repair  of  an  engine  used  by  the  South- 
ern Pacific  in  its  interstate  'business.  Bishop  v.  Southern  Pacific  Co.,  2  Cal.  I. 
A.  C.  Dec.  749.  Where  a  workman  was  engaged  in  rearranging,  transferring, 
and  changing  tracks  used  indiscriminately  for  interstate  and  intr-^state  com- 
merce. Cuebas  v.  Atchison,  T.  &  S.  F.  Ry.  Co.,  3  Cal.  I.  A.  C.  Dec.  17.  Where 
a  brakeman  on  a  wrecking  train,  sent  to  rerail  an  engine  which  was  obstructing 
the  tracks  of  an  interstate  railway,  and  at  the  time  of  derailment  was  hauling 
cars  of  interstate  freight.  James  v.  San  Pedro,  L.  A.  &  S.  L.  R.  R.  Co.,  3  Cal. 
I.  A.  C.  Dec.  13.  Where  an  employe  of  the  Santa  Fe  Railway  was  injured 
while  engaged  as  a  brakeman  in  switching  a  railway  car,  such  car  being  a 
foreign  car  loaded  with  freight  destined  to  points  outside  this  state.  Grigsby 
V.  Atchison,  Topeka  &  Santa  Fe  Ry.  Co.,  2  Cal.  I.  A.  C.  Dec.  748.  Where  a 
section  hand,  employed  by  a  railroad  doing  interstate  business,  is  injured 
while  working  upon  the  repairing  of  railroad  track.  Karras  v.  Southern 
Pacific  Co.,  2  Cal.  I.  A.  C.  Dec.  748.    Where  an  employe  of  the  Southern  Pacific 


§  10  workmen's  compensation  54 

where  at  the  time  of  injury  he  was  not  engaged  in  interstate  com- 
merce.^°  Where  one  in  the  employ  of  a  railroad  lying  wholly  with- 
in the  state  is  injured,  the  burden  of  proving  that  he  was  injured 
while  engaged  in  furthering  interstate  commerce  rests  on  the  rail- 
road company.  Such  burden  is  not  sustained  by  proof,  which  is 
not  clear,  that  certain  small  packages  of  freight,  which  alone  are 
claimed  to  give  an  interstate  character  to  the  work,  originated 
outside  the  state  and  were  not  broken  or  reshipped  locally. ^^ 

Railroad  construction  for  an  interstate  carrier  is  under  the 
state's  jurisdiction,  whether  the  work  be  performed  by  a  railroad 
company's  own  employes  or  by  contract.    Such  construction  work 

Company  is  injured  while  loading  steel  rails  upon  one  of  its  flat  cars  at  its 
terminal,  the  rails  to  be  used  in  repairing  the  main  line  of  its  track.  Campos 
V.  Southern  Pacific  Co.,  2  Cal.  I.  A.  C.  Dec.  747.  Where  an  employe  of  the 
Southern  Pacific  Company  is  injured  in  repairing  and  maintaining  a  trestle 
and  roadbed.  Lambert  v.  Southern  Pacific  Co.,  2  Cal.  I.  A.  C.  Dec.  743.  Where 
an  employe  of  a  railroad  engaged  in  interstate  and  intrastate  business  is  in- 
jured while  repairing  a  flat  car.  Garcia  v.  Atchison,  Topeka  &  Santa  Fe  Ry. 
Co.,  2  Cal.  I.  A.  C.  Dec.  741. 

10  Where  an  employe  of  a  railway  was  injured  while  in  the  construction  of  a 
dining  room  of  a  railway  engaged  in  intrastate  and  interstate  commerce,  such 
dining  room  being  constructed  within  the  state  of  California,  the  injury  did 
not  occur  while  he  was  engaged  in  interstate  commerce,  and  the  Compensa- 
tion Act  of  California  applied.  Harrington  v.  San  Diego  &  Arizona  Ry.  Co., 
2  Cal.  I.  A.  C.  Dec.  797.  Where  a  baggageman,  employed  at  a  mailing  station 
used  in  both  interstate  and  intrastate  commerce,  was  injured  by  accident  while 
on  his  way  out  of  the  baggage  room,  which  he  had  entered  with  the  purpose 
either  of  preparing  a  local  shipment  or  of  ascertaining  whether  such  a  ship- 
ment was  to  be  prepared,  he  was  not  engaged  in  interstate  commerce  at  the 
time  of  the  accident,  and  his  injury  was  compensable.  Luke  v.  A.,  T.  &  S.  F. 
R.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  1011.  Where  a  freight  handler,  employed  at  a 
station  within  the  state  to  load  cars  with  freight  destined  to  points  within  the 
state,  was  injured  while  loading  a  car  with  freight  which  had  originated  with- 
in the  state,  but  after  his  injury  the  car  was  loaded  with  more  freight,  in- 
cluding four  pieces  which  had  originated  at  points  outside  the  state,  and  the 
accident  and  injury  were  not  due  to  any  negligence  on  the  part  of  the  em- 
ployer, the  injury  was  compensable.  Wilmunder  v.  Southern  Pacific  Co.,  2 
€al.  I.  A.  C.  Dec.  1030. 

11  Conners  v.  Sugar  Pine  Ry.  Co.,  2  Cal.  I.  A.  C.  Dec.  879. 


55  ACTS  IN  GENERAL  §    H 

does  not  become  interstate  commerce  until  turned  over  to  the  ac- 
tual use  of  interstate  trade.^^  Steamboats  on  Lake  Washington 
are  engaged  in  traffic  on  interstate  waters,  and  therefore  outside 
the  jurisdiction  conferred  by  the  Washington  Act  upon  the  Indus- 
trial Accident  Commission  of  that  state.^^ 

§  11,     Administration 

The  Washington  Act  requires  the  state  to  pay  the  entire  cost 
of  administration  of  the  state  insurance  fund,  leaving  the  whole 
amount  paid  into  such  fund  by  the  employers  to  be  devoted  to  the 
payment  of  awards  for  injuries.^-*  In  the  opinion  of  the  commis- 
sion, the  state  can  well  afford  to  bear  the  cost  of  administering 
the  insurance  fund,  "as  its  courts  will  be  relieved  of  a  large  amount 
of  work,  and  the  burden  now  placed  upon  taxpayers  by  the  trial 

12  Wk.  Comp.  Act  Wash.  §  18;   Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  23. 

That  the  workman  at  the  time  of  his  injury  was  employed  as  a  common 
laborer  on  the  construction  of  a  railroad  tunnel,  which,  when  completed,  would 
be  used  to  shorten  the  interstate  line  of  the  railroad,  did  not  make  him  en- 
gaged in  interstate  commerce.  Raymond  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (C. 
C.  A.)  233  Fed.  239.  In  Bravis  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  217  Fed.  234, 
133  C.  C.  A.  22S,  the  court  said:  "The  mere  fact  that  it  was  the  purpose  and 
intention  so  to  use  it  at  some  future  time  did  not  make  it  an  instrumentality 
of  interstate  commerce.  That  purpose  and  intention  might  be  changed,  and 
it  might  never  be  used  in  interstate  commerce,  or  at  all.  The  argument  that 
the  building  of  the  cut-off  was  the  mere  correction  or  prevention  of  a  defect 
or  insufficiency  of  the  defendant's  instrumentality  for  conducting  interstate 
commerce  is  too  remote  and  inconsequential  to  convince." 

In  Pedersen  v.  Delaware,  L.  &  W.  R.  R.,  229  U.  S.  146,  33  Sup.  Ct.  648,  57 
L.  Ed.  1125,  Ann.  Cas.  1914C,  153,  the  court  said:  "The  true  test  always  is: 
Is  the  work  in  question  a  part  of  the  interstate  commerce  in  which  the  carrier 
is  engaged?  *  *  *  of  course,  w^e  are  not  here  concerned  with  the  con- 
struction of  tracks,  bridges,  engines,  or  cars  which  have  not  as  yet  become 
instrumentalities  in  such  commerce,  but  only  with  the  work  of  maintaining 
them  in  proper  condition  after  they  have  become  such  instrumentalities  and 
during  their  use  as  such." 

13  (Wk.  Comp.  Act  Wash.  §  4,  class  20)  Rulings  Wash.  Indus.  Ins.  Com. 
1915,  p.  12. 

14  (Wk.  Comp.  Act  Wash.  §  29)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  27. 


§11  workmen's  compensation  56 

of  negligence  cases  will  be  minimized.  The  tendency  of  this  act 
should  be  to  produce  good  will  between  employer  and  employe,  and 
to  lessen  the  cases  of  hardship  among  dependents  of  injured  em- 
ployes. In  taking  into  consideration  the  state's  many  vital  inter- 
ests in  the  welfare  of  the  workman  and  his  family,  the  general  tax- 
payer may  well  afford  to  bear  the  expense  of  administration."  ^^ 
The  physician's  report  relative  to  the  injury,  as  part  of  the  work- 
man's claim,  is  a  duty  to  the  state ;  no  payment  is  allowed  there- 
for, though  charge  for  professional  services  rendered  to  a  work- 
man is  his  personal  debt,  unless  the  employer  contracted  to  pay 
the  same.^^  Reports  of  the  accident  made  to  the  insurance  depart- 
ment must  state  the  time,  cause,  and  nature  of  the  accident  and  in- 
juries, and  the  probable  duration  of  the  injury  resulting  there- 
from,^^ and  also  whether  the  accident  arose  out  of  or  in  the  course 
of  the  injured  person's  employment.^^  All  necessary  blanks  are 
furnished  free  of  cost.^" 

The  state  insurance  fund  of  Nevada,  not  being  part  of  the  "state 
treasury,"  though  paid  to  the  state  treasurer,  is  not  subject  to  the 
constitutional  restrictions  on  the  payment  of  funds  from  the  state 
treasury.^  "^ 

The  Minnesota  Commissioner  of  Labor  and  any  employe  con- 
nected with  that  department  are  prohibited  from  disclosing  wheth- 

15  (Wk.  Comp.  Act  Wash.  §  29)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  27. 

16  (Wk.  Comp.  Act  Wash.  §  12)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  20. 

17  (WTi.  Comp.  Act  Wash.  §  14)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  21. 

18  (Wk.  Comp.  Act  Wash.  §  14)  Rulings  Wash.  Indus,  Ins.  Com.  1915,  p.  21. 
They  must  answer  all  questions  fully  that  appear  on  employer's  report  of  acci- 
dent, form  21,  and  workman's  report  of  accident,  form  22,  so  far  as  they  apply 
to  the  particular  accident  being  reported  and  any  other  information  pertinent 
to  the  injury.  Questions  which  are  seemingly  of  no  importance  are  asked  for 
statistical  purposes  and  should  be  answered  whenever  possible.  (Wk,  Comp. 
Act  Wash.  §  14)  Id.  p.  21, 

19  (Wk.  Comp.  Act  Wash.  §  12)  Rulings  Wlish.  Indus.  Ins.  Com.  1915,  p,  21, 

20  State  V.  McMillan,  36  Nev.  383,  136  Pac.  108. 


57  ACTS  IN   GENERAL  §11 

er  or  not  a  certain  accident  has  been  reported  to  the  labor  depart- 
ment as  required  by  the  Act.^^ 

Where  the  Wisconsin  Industrial  Commission,  successor  to  the 
Industrial  Accident  Board,  had  many  duties  to  perform  other  than 
those  imposed  on  them  by  the  Workmen's  Compensation  Act,  a 
taxpayer  could  not  enjoin  payment  of  their  salaries  on  the  ground 
that  the  Act  was  unconstitutional,  even  if  such  ground  were  well 
taken.^^ 

21  (Gen.  Laws,  1913,  c.  416,  §  4 ;  Gen.  St.  1913,  §  8895)  Op.  Atty.  Gen.  on 
Minn.  Wk.  Comp.  Act,  Bui.  11,  p.  16. 

22  In  re  Filer  &  S.  Co.,  146  Wis.  629,  132  N.  W.  584. 


§  12  workmen's  compensation  58 

ARTICLE  III 

VALIDITY 

Section 

12.  Police  power. 

13.  Validity  as  against  particular  objections. 

14.  Objections  raised  under  constitutional  provisions. 

15.  New  York — Ives  Case. 

16.  Kentucky. 

17.  Classification. 

18.  Abolition  of  defenses. 

19.  Right  to  question  validity. 

§  12.     Police  power 

The  authority  for  this  legislation  is  that  power  of  the  state  termed 
the  police  power;  ^^  a  power  by  which  the  Legislature  supervises 
matters  relating  to  the  common  weal  and  enforces  the  observance 
by  each  member  of  society  of  duties  owed  by  him  to  others  and  to 
the  community  at  large.  All  rights  are  possessed  and  enjoyed  sub- 
ject to  it.  Under  it  the  state  may  prescribe  regulations  for  the  pro- 
motion of  health,  peace,  morals,  education,  and  good  order,  and  so 

23  This  legislation  is  a  legitimate  exercise  of  the  police  power.  Hunter  v. 
Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037;  Memphis  Cotton  Oil  Co.  v. 
Tolbert  (Tex.  Civ.  App.)  171  S.  W.  309 ;  Sayles  v.  Foley  (R.  I.)  96  Atl.  340.  The 
Workmen's  Compensation  Act,  under  which  it  was  sought  to  collect  premiums, 
is  a  police  regiilation,  and  a  valid  exercise  of  the  police  power  of  the  state. 
State  V.  City  of  Seattle,  73  Wash.  396,  132  Pac.  45.  The  Industrial  Insurance 
Act  (Laws  1911,  c.  74)  is  within  the  state's  police  power.  State  v.  Mountain 
Timber  Co.,  75  Wash.  581,  135  Pac.  645 ;  Stoll  v.  Pacific  Coast  S.  S.  Co.  (D. 
C.)  205  Fed.  169. 

The  Washington  Act,  substituting  a  new  remedy, for  an  existing  remedy 
which  was  uncertain,  slow,  and  inadequate,  was  a  valid  exercise  of  the  police 
power  of  the  state.  Raymond  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (C.  C.  A.) 
233  Fed.  239 ;  State  v.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N. 
S.)  406 ;  Peet  v.  Mills,  76  Wash.  437,  136  Pac.  685,  L.  R.  A.  1916A,  358,  Ann. 
Cas.  1915D,  154. 

The  New  York  Act  is  a  proper  exercise  of  the  police  power  of  the  state, 
growing  out  of  the  fact  that  injured  workmen  or  their  dependents  are  likely 
to  become  a  puldic  charge  unless  provision  is  made  for  their  maintenance. 
Lloyd  V.  Power  Specialty  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  9. 


59  ACTS  IN  GENERAL  §    12 

legislate  as  to  increase  the  industries  of  the  state,  develop  its  re- 
sources, and  add  to  its  welfare  and  prosperity.  Reduced  to  its  last 
analysis,  the  police  power  is  the  power  to  govern.-*  It  is  inherent 
in  every  sovereignty.-^  All  contracts  are  subject  to  it,  and  its  ex- 
ercise can  neither  be  abridged  nor  delayed  by  reason  of  existing 
contracts.^^^  The  test  of  the  validity  of  a  police  regulation  is  rea- 
sonableness, as  distinguished  from  arbitrary  or  capricious  action. ^^ 
From  the  foregoing  principles  it  clearly  appears  that  it  is  within  the 
state's  power  to  enact  and  enforce  police  regulations,  though  cer- 
tain contracts  between  individuals  are  thereby  rendered  less  val- 
uable and  others  are  totally  abrogated.^ ^  A  Compensation  Act  is 
therefore  valid  where  it  has  a  reasonable  relation  to  the  protec- 
tion of  public  health,  morals,  safety,  or  welfare,  and  will  not  be 
declared  invalid  because  it  incidentally  deprives  some  person  of 
his  property  without  fault  or  takes  the  property  of  one  to  pay  the 
obligations  of  another.  Before  an  Act  will  be  declared  fatally  de-^ 
fective  in  these  respects,  it  must  appear  so  utterly  unreasonable  and 
so  extravagant  in  nature  and  purpose  as  capriciously  to  interfere 
with  and  destroy  private  rights.^ '^    An  Act  is  none  the  less  a  valid 

24  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  6S6,  151  Pac.  398. 

2  5  State  V.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466. 

26  State  V.  City  of  Seattle,  73  Wash.  396,  132  Pac.  45. 

27  State  V.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  E.  A.  (N.  S.)  466. 

28  State  V.  City  of  Seattle,  73  Wash.  396,  132  Pac.  45. 

2  9  State  V.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466. 

The  police  power  of  the  state  is  an  attribute  of  sovereignty,  and  by  its  ex- 
ercise the  state  may  provide  for  the  safety  and  general  welfare  of  its  people. 
This  power  is  not,  however,  unlimited  and  uncontrollable,  but  is  subject  to 
the  supervision  of  the  courts,  which  have  power  to  restrain  it  within  reason- 
able limits;  in  any  case  where  the  court  can  see  that  the  particular  act  in 
question  has  a  reasonable  and  substantial  relation  to  the  power,  it  should  be 
cautious  about  declaring  the  act  invalid.  American  Coal  Co.  v.  Allegany  Coun- 
ty Com'rs,  128  Md.  564,  98  Atl.  143.  The  Maryland  Act,  creating  a  miners' 
and  operators'  co-operative  relief  fund  for  the  relief  and  sustenance  of  em- 
ployes or  dependents  of  employes  injured  in  clay  and  coal  mining  (Acts  1910, 
c.  153,  as  amended  by  Acts  1912,  c.  445),  reasonably  tends  to  correct  an  exist- 


§  13  workmen's  compensation  60 

exercise  of  the  police  power  because  the  workman's  dependents  live 
outside  the  state  or  nation. ^° 

§  13.     Validity  as  against  particular  objections 

The  validity  of  this  legislation  should  be  viewed  in  the  light  of 
modern  conditions,  rather  than  those  under  which  the  common-law 
doctrines  were  developed.  With  the  change  in  industrial  condi- 
tions, sentiment  has  gradually  developed,  which  almost  universally 
favors  a  more  just  and  economical  system  of  providing  compen- 
sation for  accidental  injuries  to  employes  as  a  substitute  for  waste- 
ful and  protracted  damage  suits,  frequently  unjust  in  their  results. 
The  competency  of  the  state,  in  the  promotion  of  the  general  wel- 
fare, to  require  that  both  employer  and  employe  yield  something 
toward  the  establishment  of  a  plan  of  compensation  for  their  mutual 
protection  and  advantage  cannot  seriously  be  questioned.  Any 
plan  devised  by  man  may,  in  exceptional  cases,  work  unjustly,  but 
this  legislation  is  to  be  judged  by  its  general  plan  and  scope. ^^ 

It  does  not  invalidate  a  Compensation  Act  that  it  does  not  in  le- 
gal effect  cover  the  entire  field  subject  to  such  regulation, ^^  that 
it  singles  out  a  particularly  hazardous  employment  and  subjects  it 
to  burdens  not  imposed  on  other  hazardous  employments,  or  that 
it  is  limited  to  employes  engaged  in  hazardous  or  extrahazardous 
work.  Nor  is  it  material  to  the  validity  of  a  Compensation  Act 
that  it  hampers  private  action  in  a  matter  which  before  was  free 
from  interference,^^  that  it  provides  for  reimbursement  of  the 
employer  or  insurer  by  a  third  party  tort-feasor,^*  that  it  contains 

ing  evil  and  promote  the  welfare  of  the  state,  and  hence  is  a  valid  exercise  of 
the  state's  police  power.    Id. 

8  0  Western  Metal  Supply  Co.  v.  Pillsbury  (Cal.)  156  Pac.  491. 

31  Jensen  v.  Southern  Pac.  Co.,  215  N.  Y.  514,  109  K  E.  600,  L,  E.  A. 
1916A,  403,  Ann.  Cas.  1916B,  276. 

32  Sayles  v.  Foley  (R.  I.)  96  Atl.  340. 

3  3  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  6S6,  151  Pac.  398. 
8  4  Grand  Rapids  Lumber  Co.  v.  Blair  (Mich.)  157  N.  W.  29. 


61  ACTS   IN  GENERAL  §    13 

provisions  guarding  against  its  nullification  by  contracts  obtained 
by  the  employer  when  the  employe  is  at  a  physical  or  financial  dis- 
advantage,^^ that  it  places  the  burden  of  proof  as  to  negligence  and 
proximate  cause  of  injury  on  the  employer,^''  or  that  it  includes 
nonresident  aliens  within,^^  or  excludes  them  from,  its  benefits. ^^ 
It  is  no  objection  to  an  Act  that  the  practice  under  it  is  unusuaP^ 
and  different  from  that  theretofore  existing,*'^  constituting  a  change 
m  the  rules  of  evidence  and  procedure,"  and  rendering  findings  of 
fact  conclusive,*^  or  that  it  makes  differences  in  the  measure  of 

3  5  Workmen's  Compensation  Act  (Acts  35th  Gen.  Assem.  c.  147)  §§  3,  8,  13, 
18,  19 ;  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037. 

3  6  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037. 

3  7  The  fact  that  the  California  Act  authorizes  payment  to  dependents  who 
are  nonresidents  of  the  state  and  nation  does  not  make  it  invalid  as  serv- 
ing no  public  purpose.  There  is  no  constitutional  or  rational  ground  for  lim- 
iting the  benefits  of  this  legislation  to  residents  of  the  state.  Western  Metal 
Supply  Co.  V.  Pillsbury  (Cal.)  156  Pac.  491.  ' 

3  8  The  Lregislature  had  power  to  exclude  nonresident  aliens  from  the  benefits 
of  this  act.  It  was  within  the  legislative  power  to  give  or  withhold  the  right 
of  action  and  to  declare  to  whom  and  in  what  amount  compensation  shall 
be  made.  (Wk.  Comp.  Act,  §  2,  par.  12)  Gregutis  v.  Waclark  Wire  Works,  86 
N.  J.  Law,  610,  92  Atl.  354,  citing  Cetefont  v.  Camden  Coke  Co.,  78  N.  J. 
Law,  662,  75  Atl.  913,  27  L.  R.  A.  (N.  S.)  1058. 

3  9  Since  Const  art.  1,  §  19,  authorized  the  Legislature  to  create  this  new 
remedy  and  the  practice  to  enforce  it,  the  fact  that  the  practice  under  this 
act  is  unusual  is  no  objection  to  it.  McQueeney  v.  Sutphen  &  Hyer,  167  App. 
Div.  528,  153  N.  Y.  Supp.  554. 

40  McQueeney  v.  Sutphen  &  Hyer,  167  App.  Div.  528,  153  N.  Y.  Supp.  554. 

41  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037.  The  Leg- 
islature may  from  time  to  time,  without  violating  a  party's  constitutional 
rights,  change  the  rules  of  evidence  and  procedure.  It  may  cast  the  burden 
of  proof  upon  any  party,  and  may  make  certain  acts  prima  facie  evidence  of 
facts,  if  the  acts  by  any  reasonable  intendment  bear  upon  or  tend  to  establish 
the  facts.  McQueeney  v.  Sutphen  &  Hyer,  167  App.  Div.  528,  153  K  Y.  Supp. 
554. 

42  That  the  Act  provides  that  findings  of  fact  by  the  sui>erior  court  shall  be 
conclusive  does  not  render  it  unconstitutional.  (Workmen's  Compensation 
Act,  Laws  1911-12,  c.  831,  art.  3,  §§  6,  7)  Jillson  v.  Ross  (R.  I.)  94  Atl.  717. 


§13  workmen's  compensation  62 

damages.*^  It  does  not  invalidate  an  Act  that  it  operates  to  effect 
a  change  in  the  common-law  obligations  of  the  employer/*  and  pre- 
scribes a  fixed  sum  for  an  injury,  whether  it  result  from  dangers 
inherent  in  the  employment  or  from  some  fault  of  the  employer/^ 

4  3  It  is  not  fatal  that  the  act  does  not  in  legal  effect  cover  the  entire  field 
subject  to  such  regulation  (Button  v.  Priest,  67  Fla.  370,  65  South.  282),  or 
singles  out  a  particularly  hazardous  employment  and  subjects  it  to  burdens 
not  placed  on  other  extrahazardous  employments  (Cunningham's  Case,  44 
Mont.  ISO,  119  Pac.  554),  or  that  it  is  limited  to  employes  engaged  in  extra- 
hazardous work  (State  v.  Clausen,  65  Wash.  150,  117  Pac.  1102,  37  L.  R.  A. 
[N.  S.]  466).  In  Cunningham's  Case,  supra,  it  is  held  not  to  be  an  arbitrary 
discrimination  that  the  act  makes  no  difference  between  employers  who  are 
careful  and  others  who  are  or  may  be  careless.  It  does  not  avoid  the  act 
that  it  makes  differences  in  the  measure  of  damages.  Railway  v.  Beckwith, 
129  U.  S.  26,  9  Sup.  Ct.  207,  32  L.  Ed.  585 ;  Hunter  v.  Colfax  Consol.  Coal  Co. 
(Iowa)  154  N.  W.  1037. 

44  The  Legislature  has  unquestionable  power  to  authorize  contracts  of  em- 
ployment which  change  the  common-law  obligation  of  the  employer,  providing 
instead  the  amounts  fixed  by  the  Compensation  Act.  Troth  v.  Millville  Bot- 
tle Works  (N.  J.)  98  Atl.  435,  affirming  86  N.  J.  Law,  558,  91  Atl.  1031. 

In  Raymond  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (C.  C.  A.)  233  Fed.  239,  the  court 
said,  relative  to  the  Washington  Act:  "The  state  Legislature,  in  the  exercise 
of  its  wisdom,  has  adopted  for  the  case  of  an  injury  resulting  in  total  dis- 
ability to  an  employe  a  monthly  compensation  which  is  fixed  and  determined, 
and  is  secured  to  him  for  the  remainder  of  his  life.  We  are  not  prepared  to 
say  that  it  is  not  a  better  provision  for  him  than  the  common-law  remedy, 
whereby  he  was  required  to  prove  the  negligence  of  the  defendant,  and  his 
cause  of  action  was  subject  to  the  defenses  of  contributory  negligence  and  as- 
sumption of  risk ;  and  the  amount  recoverable  was  uncertain,  and  was  largely 
to  be  reduced  by  the  payment  of  attorney's  fees." 

45  State  v.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466; 
Cunningham  Case,  44  Mont.  180,  119  Pac.  554.  Constitutional  objections  will 
not  lie  to  an  Act  because  it  imposes  upon  the  employer  a  liability  to  compen- 
sate his  employes  for  injuries  actually  received  in  the  particular  employment, 
while  under  other  statutes — for  example,  that  of  Washington — all  employers 
are  required  to  contribute  sums,  proportioned  to  their  pay  roll  and  graduated 
according  to  the  nature  of  the  industry,  into  a  fund  out  of  which  all  claims 
for  compensation  are  to  be  paid.  The  essential  question  is  whether  liability 
for  injury  suffered  by  employes  through  accident  may  be  imposed  upon  em- 
ployers who  have  been  guilty  of  no  breach  of  duty.  Once  this  question  is  an- 
swered in  the  affirmative,  the  mode  of  imposing  the  liability,  whether  it  be 
by  way  of  a  proportionate  contribution  having  some  of  the  characteristics 


63  ACTS   IN   GENERAL  §    13 

or  that  the  administration  of  the  Act  devolves  mainly  on  a  special 
tribunal  created  by  it."''  That  the  Michigan  Act  applies  to  munic- 
ipal corporations,  and  requires  them  to  compensate  injured  em- 
ployes of  the  municipality,  does  not  make  it  invalid.*^  The  fact  that 
the  California  Act  makes  the  employer  liable  for  compensation 
for  injuries  received  in  the  particular  employment,  while  other  Acts, 
such  as  that  of  Washington,  require  all  employers  to  contribute 
sums  proportionate  to  their  pay  roll  and  graduated  according  to  the 
nature  of  the  industry  into  a  fund  out  of  which  all  claims  for  com- 
pensation are  to  be  paid,  has  no  bearing  on  the  constitutionality 
of  the  California  Act.*«  The  rule  that  all  laws  enacted  by  the  Leg- 
islature are  presumed  to  be  valid,  and  that  it  is  the  duty  of  the 
courts  to  declare  them  valid,  unless  they  clearly  transgress  some 
limitation  upon  the  power  of  the  Legislature  imposed  by  the  state 
or  federal  Constitution,  applies  with  special  force  to  Compensation 
Acts/» 

of  a  tax,  or  by  fixing  a  direct  liability  upon  each  employer  for  each  accident 
as  it  occurs,  is  a  matter  for  legislative  determination.  Western  Indemnity 
Co.  V.  Pillsbury,  170  Cal.  686,  151  Pac.  398.  That  the  Iowa  Act  (Acts  35th 
Gen.  Assem.  Iowa,  c.  147,  §§  1-22)  fixes  with  certainty  the  damages  to  be  allow- 
ed in  case  of  loss  or  injury  does  not  render  it  unconstitutional.  Hawkins  v. 
Bleakley  (D.  C.)  220  Fed.  378. 

4  6  Evanhoff  v.  State  Industrial  Accident  Commission,  78  Or.  503,  154  Pac. 
106.  The  provisions  of  the  Iowa  Act  (Acts  35th  Gen.  Assem.  c.  147,  §§  23-41), 
relating  to  arbitration  under  the  direction  of  a  commissioner,  are  constitu- 
tional.   Hawkins  v.  Bleakley  (D.  C.)  220  Fed.  378. 

47  Wood  V.  City  of  Detroit  (Mich.)  155  N.  W.  592,  L.  R.  A.  1916C,  388. 

4  8  Western  Indemnity  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  454,  170  Cal. 
686,  151  Pac.  398. 

4  9  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037;  Mathison  v. 
Minneapolis  St.  Ry.  Co.,  126  Minn.  286,  148  N.  W.  71.  All  laws  are  presum- 
ably valid.  P.oos  v.  State,  6  Minn.  428  (Gil.  291) ;  State  v.  Corbett,  57  Minn. 
345,  59  N.  W.  317,  24  L.  R.  A.  498;  Lommen  v.  Minneapolis  Gaslight  Co.,  65 
Minn.  196,  68  N.  W.  53,  33  L.  R.  A.  437,  60  Am.  St.  Rep.  450 ;  Union  Pacific 
Ry.  Co.  V.  United  States,  99  U.  S.  700,  25  L.  Ed.  496 ;  Powell  v.  Pennsylvania, 
127  U.  S.  678,  8  Sup.  Ct.  992,  1257,  32  L.  Ed.  253.  The  court  should  not  declare 
compensation  statutes  unconstitutional  unless  satisfied  of  their  unconstitution- 


§  14  workmen's  compensation  64 

§  14.     Objections  raised  under  constitutional  provisions 

Every  conceivable  constitutional  objection  has  been  made  to  the 
various  Acts.  They  have  been  quite  uniformly  upheld  as  against 
general  objections  that  they  are  unconstitutional,^''  and  as  against 

ality  beyond  a  reasonable  doubt.    Victor  Chemical  Works  v.  Industrial  Board 
of  Illinois,  274  111.  11,  113  N.  E.  173.    See  §  6,  ante. 

While  if,  under  the  Maryland  Act,  creating  a  miners'  and  operator's  co- 
operative relief  fund,  the  employ^  should  refuse  compensation  and  bring  suit 
after  the  employer  had  gone  out  of  business,  he  might  be  required  to  pay  the 
judgment  in  addition  to  his  contributions  to  the  fund  (there  being  no  pro- 
vision for  refund  of  premiums),  such  a  possible  contingency  is  not  to  be  al- 
lowed to  strike  down  an  act  supported  by  strong  considerations  of  public  jus- 
tice, and  which  is  manifestly  promotive  of  the  general  interest  of  the  state. 
American  Coal  Co.  v.  Allegany  County  Com'rs,  128  Md.  564,  98  Atl.  143. 

5  0  The  Compensation  Act  of  the  particular  state  was  held  constitutional 
in  each  of  the  following  cases:  Shade  v.  Ash  Grove  Lime  &  Portland  Cement 
Co.,  93  Kan.  257,  144  Tac.  249;  Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W. 
649;  State  ex  rel.  Nelson-Spelliscy  Co.  v.  Dist.  Ct.,  128  Minn.  221,  150  N.  W. 
623 ;  Johnson  v.  Nelson,  128  Minn.  158,  150  N.  W.  620;  Mathison  v.  Minneapo- 
lis St.  Ry.  Co.,  126  Jlinn.  286,  148  N.  W.  71 ;  State  v.  District  Court  of  Meeker 
County,  128  Minn.  221,  150  N.  W.  623;  Sayles  v.  Foley  (R.  I.)  96  Atl. 
340;  State  v.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466,  3 
N.  C.  C.  A.  599 ;  State  v.  City  of  Seattle,  73  Wash.  396,  132  Pac.  45 ;  State  v. 
Mountain  Timber  Co.,  75  Wash.  581,  135  Pac.  645;  Deibeikis  v.  Linkbelt  Co., 
261  111.  454,  104  N.  E.  211,  Ann.  Cas.  1915A,  241 ;  Deviue  v.  Delano,  272  111.  166, 
111  N.  E.  742 ;  Fergus  v.  Russel,  270  111.  304,  110  N.  E.  130,  Ann.  Cas.  1916B, 
1120;  Crooks  v.  TazeweU  Coal  Co.,  263  111.  343,  105  N.  E.  132,  Ann.  Cas.  1915C, 
304 ;  Dragovich  v.  Iroquois  Iron  Co.,  269  111.  478,  109  N.  E.  999 ;  Przyopenski 
V.  Citizens'  Coal  Co.,  270  111.  275,  110  N.  E.  336;  Richardson  v.  Sears,  Roebuck 
&  Co.,  271  111.  325,  111  N.  E.  85;  Dietz  v.  Big  Muddy  Coal  &  Iron  Co.,  263  111. 
480,  105  N.  E.  289  (Laws  1911,  p.  314).  The  Workmen's  Compensation  Act 
is  not  violative  of  Const,  art.  4,  §  13,  providing  that  every  bill  and  all  amend- 
ments thereto  shall  be  printed  before  the  vote  is  taken  on  its  final  passage. 
Lauruska  v.  Empire  Mfg.  Co.,  271  111.  304,  111  N.  E.  82.  The  Workmen's 
Compensation  Act  (Laws  1913,  c.  816  [Consol.  Laws,  c.  67],  as  re-enacted  and 
amended  by  Laws  1914,  c.  41,  and  by  Laws  1914,  c.  316,  and  Laws  1915,  c.  167) 
is  constitutional.  Moore  v.  Lehigh  Valley  R,  Co.,  169  App.  Div.  177,  154  N.  Y. 
Supp.  620;  Wagner  v.  American  Bridge  Co.  (Sup.)  158  N.  Y.  Supp.  1043.  Act 
approved  June- 15,  1911  (102  Ohio  Laws,  p.  524),  is  a  valid  exercise  of  the 
legislative  power,  not  repugnant  to  the  federal  or  state  Constitutions.  State 
V.  Creamer,  85  Ohio  St.  349,  97  N.  E.  602,  1  N.  C.  C.  A.  30,  39  L.  R.  A.  (N.  S.) 


65  ACTS  IN   GENERAL  §    14 

the  objections  that  they  are  class  legislation,^^  and  make  unreason- 
able classifications,^^  deny  equal  protection  "^  and  due  process  of 

694;  Jeffrey  Mfg.  Co.  v.  Blagg,  90  Ohio  St.  376,  lOS  N.  E.  465.  The  Wash- 
ington Act  is  constitutional.  Stoll  v.  Pacific  Coast  S.  S.  Co.  (D.  C.)  205  Fed. 
169.  The  provisions  of  the  Iowa  Act  (Acts  35th  Gen.  Assem.  c.  147,  §§  42-51) 
relating  to  insurance  to  cover  liabilities  for  damages  are  constitutional.  That 
it  may  have  objectionable  features  does  not  render  it  invalid.  Objections  to 
it  from  the  standpoint  of  propriety  and  policy  were  for  the  legislature.  Haw- 
kins v.  Bleakley  (D.  C.)  220  Fed.  378. 

51  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037.  Laws  1911,  c. 
74,  does  not  violate  Const,  art.  1,  §  12,  prohibiting  class  legislation.  State  v. 
Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466.  Laws  1915,  c. 
96,  is  not  open  to  the  objection  that  it  constitutes  class  legislation.  Lewis  and 
Clark  County  v.  Indus.  Acct.  Bd.  (Mont.)  155  Pac.  26S. 

5  2  Taking  away  the  defense  that  the  injury  is  due  to  the  negligence  of  a 
fellow  servant  does  not  make  the  Act  objectionable  as  illegal  classification,  or 
in  any  way  violative  of  constitutional  rights.  Railway  v.  Mackey,  127 
U.  S,  205,  8  Sup.  Ct.  1161,  32  L.  Ed.  107;  Railway  v.  Turnipseed,  219  U. 
S.  35,  31  Sup.  Ct.  136.  55  L.  Ed.  78,  32  L.  R.  A.  (N.  S.)  226,; Ann.  Cas.  1912A, 
463;  Watson  v.  Railway  (C.  C.)  169  Fed.  943;  Hunter  v.  Colfax  Consol.  Coal 
Co.  (Iowa)  154  N.  W.  1037.  The  classification  of  employments  adopted  is  not 
unreasonable.  State  v.  Griffin,  69  N.  H.  1,  39  Atl.  260,  41  L.  R.  A.  177,  76  Am. 
St.  Rep.  130 ;  Wheeler  v.  Contoowok  Mills  Corporation,  77  N.  H.  551,  94  Atl. 
265. 

53  (Const.  U.  S.  Amend.  14,  §  1)  Sayles  v.  Foley  (R.  I.)  96  Atl.  340;  Mem- 
phis Cotton  Oil  Co.  V.  Tolbert  (Tex.  Civ.  App.)  171  S.  W.  309;  Consumers' 
Lignite  Co.  v.  Grant  (Tex.  Civ.  App.)  ISl  S.  W.  202  ;  Hunter  v.  Colfax  Consol. 
Coal  Co.  (Iowa)  154  N.  W,  1037;  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal. 
686,  151  Pac.  398;  Shade  v.  Ash  Grove  Lime  &  Portland  Cement  Co.,  93  Kan. 
257,  144  Pac.  249.  In  re  Clausen,  65  Wash.  156,  117  Pac.  1102,  37  L.  R.  A. 
(N.  S.)  466;  Northern  Pac.  Ry.  Co.  v.  Meese,  36  Sup.  Ct.  223,  239  U.  S.  614, 
60  L.  Ed.  467;  Wheeler  v.  Contocook  Mills  Corporation,  77  N.  H.  551,  94  Atl. 
265.  (Industrial  Insurance  Law,  Laws  1911,  c.  74)  State  v.  Mountain  Timber 
Co.,  75  Wash.  581,  135  Pac.  645;  State  v.  Clausen,  65  Wash.  156,  117  Pac. 
1101,  37  L.  R.  A.  (N.  S.)  466.  The  classification  of  certain  specified  occupa- 
tions as  dangerous  was  not  fanciful  or  arbitrary,  and  hence  does  not  violate 
the  Constitution.  (Laws  1910,  c.  674,  art.  14a)  Ives  v.  South  Buffalo  Ry.  Co., 
201  N.  Y.  271,  94  N.  E.  431,  34  L.  R.  A.  (N.  S.)  162,  Ann.  Cas.  1912B,  156.  The 
classification  of  employers  as  municipal  and  otherwise  and  giving  to  private 
employers  the  right  to  elect  whether  to  come  under  the  act,  while  imposing  it 
on  municipal  employers,  does  not  invalidate  the  act.  (Workmen's  Compensa- 
tion Act,  Pub.  Acts,  Ex.  Sess.  1912,  No.  10,  as  amended  by  Pub.  Acts  1913,  No. 

HON.COMP. — 5 


§  14  workmen's  compensation  66 

law,'^*  impair  the  obligation  of  existing  contracts,  though  applying 
to  such  contracts/^  and  interfere  with  the  right  to  contract/®  the 

50)  Wtood  V.  City  of  Detroit  (Mich.)  155  N.  W.  592,  L.  R.  A.  1916C,  388.  The 
Act  is  not  uuconstitutional  because  it  excludes  from  its  operation  casual  em- 
ployes and  emploj-es  engaged  in  farm,  dairy,  agricultural,  viticultural,  or  horti- 
cultural labor,  in  stock  or  poultry  raising,  or  in  household  domestic  service,  on 
the  theory  that  no  exceptions  are  permissible  under  article  20,  §  21,  or  that 
such  exceptions  make  the  law  vulnerable  as  special  legislation.  Western  In- 
demnity Co.  V.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  454,  170  Cal.  686,  151  Pac.  308. 

The  classification  of  the  Maryland  Act  providing  relief  for  injured  employes 
and  their  dependents  in  the  counties  of  Allegany  and  Garrett  is  based  on  a 
natural,  reasonable,  and  essential  difference  in  risk  between  the  workmen  in- 
cluded and  those  of  other  industries,  and  treats  all  alike  within  the  classes 
established.  It  is  therefore  not  in  violation  of  the  Fourteenth  Amendment  to 
the  United  States  Constitution,  commonly  known  as  the  equal  protection  clause. 
American  Coal  Co.  v.  Allegany  County  Com'rs,  128  Md.  564,  98  Atl.  143. 

54  Sayles  v.  Foley  (R.  I.)  96  Atl.  340;  Shade  v.  Ash  Grove  Lime  &  Portland 
Cement  Co.,  93  Kan.  257,  144  Pac.  249 ;  McQueeney  v.  Sutphen  &  Ilyer,  167 
App.  Div.  528,  153  N.  Y.  Supp.  554;  Evanhoff  v.  State  Industrial  Accident 
Commission,  78  Or.  503,  154  Pac.  106.  (Wk.  Comp.  Act,  P.  L.  1911,  p.  136,  §  2) 
Sexton  V.  Newark  District  Telegraph  Co.,  84  N.  J.  Law,  85,  86  Atl.  451;  Mem- 
phis Cotton  Oil  Co.  V.  Tolbert  (Tex.  Civ.  App.)   171  S.  W.  309;    Consumers' 

5  5  State  V.  City  of  Seattle,  73  Wash.  398,  132  Pac.  45.  (Wk.  Comp.  Act,  P.  L. 
1911,  p.  134)  Troth  v.  Millville  Bottle  Works,  86  N.  J.  Law,  558,  91  Atl.  1031 ; 
Sexton  v.  Newark  District  Telegraph  Co.,  84  N.  J.  Law,  85,  86  Atl.  451.  That 
the  statute  applies  to  relations  existing  at  the  time  of  its  passage  does  not 
render  it  unconstitutional  as  impairing  the  obligations  of  existing  contracts. 
State  ex  rel.  Nelson-Spelliscy  Co.  v.  District  Court  of  Meeker  County,  128 
Minn.  221,  150  N.  W.  623.  All  contracts  are  subject  to  the  police  power. 
(Laws  1911,  c.  74)  State  v.  City  of  Seattle,  73  Wash.  396,  132  Pac.  45;  In  re 
McGuire,  219  U.  S.  549,  31  Sup.  Ct.  259.  55  L.  Ed.  328 ;  Railway  v.  Schubert, 
224  U.  S.  603,  32  Sup.  Ct.  589,  56  L.  Ed.  911 ;  State  v.  Creamer,  85  Ohio  St. 
349,  97  N.  E.  603,  39  L.  R.  A.  (N.  S.)  694. 

The  provision  of  the  supplement  to  the  New  Jersey  Act  which  declares  it 
shall  be  conclusively  presumed,  in  absence  of  written  notice  by  the  employer 
or  employe,  that  all  contracts  of  employment  made  prior  to  its  passage  have 
been  modified  by  mutual  consent  so  that  the  measure  of  the  employer's  liability 
for  accident  shall  be  in  accordance  with  the  Compensation  Act,  is  not  un- 
constitutional as  impairing  the  obligations  of  the  employer  under  existing 
contracts.  (P.  L.  N.  J.  1911,  p.  763;  P.  L.  1911,  p.  136,  §  2)  Troth  v.  Millville 
Bottle  Works  (N.  J.)  98  Atl.  435,  affirming  86  N.  J.  Law,  558,  91  Atl.  1031. 

5  6  See  note  50  on  following  page. 


G7  ACTS  IN   GENERAL  §    14 

right  to  jury  trial, ''^  and  vested  rights  by  abolishing  existing  stat- 
utory and  common-law  remedies/®  and  that  they  abridge  privileges 

Lignite  Co.  v.  Grant  (Tex.  Civ.  App.)  181  S.  W.  202;  Hunter  v.  Colfax  Consol. 
Coal  Co.  (Iowa)  157  N.  W.  145;  State  v.  Clausen,  65  Wash.  15G,  117  Pac.  1101, 
37  L.  R.  A.  (N.  S.)  4G6;  State  v.  Mountain  Timber  Co.,  75  Wash.  581,  135  Pac. 
645.  (Washington  Act)  Stoll  v.  Pacific  Coast  S.  S.  Co.  (D.  C.)  205  Fed.  1G9. 
A  law  which  disturbs  no  vested  right  of  property,  which  is  not  retroactive  in 
its  operations  upon  the  conduct  of  persons,  but  which,  looking  to  the  future, 
merely  changes  the  existing  rules  governing  the  liability  of  masters  for  in- 
juries caused  by  accident  occurring  to  their  servants  while  in  the  service,  does 
not  come  within  the  scope  of  the  Fourteenth  Amendment  of  the  Constitution  of 
the  United  States,  but  is  simply  an  exercise  by  the  state  of  its  governmental 
power  to  pass  laws  regulating  the  ordinary  private  rights  of  person  and  prop- 
erty. (Boynton  Act,  St.  1913,  p.  279)  Western  Indemnity  Co.  v.  Pillsbury,  2 
Cal.  I.  A.  C.  Dec.  454,  170  Cal.  686,  151  Pac.  398.  That  the  Washington  Act 
authorizes  compensation  for  injuries  due  to  the  act  of  a  third  person  does  not 
make  it  violative  of  the  due  process  of  law  provision  of  the  Constitution. 
Stertz  V.  Industrial  Insurance  Commission  of  Washington  (Wash.)  158  Pac. 
256.  The  Washington  Act  is  not  invalid  as  denying  to  the  injured  workman 
the  due  process  of  law,  in  providing  for  the  determination  of  the  right  to  com- 
pensation without  jury  trial,  since  the  due  process  of  law  in  the  states  is  regu- 
lated by  the  law  of  the  state.  (U.  S.  Const.  Amend.  14)  Raymond  v.  Chicago, 
M.  &  St.  P.  Ry.  Co.  (C.  C.  A.)  233  Fed.  239. 

5  6  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037;  State  v.  Clau- 
sen, 65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466.  A  provision  that  an 
employe  of  an  accepting  employer  shall  waive  his  conunon-law  right  of  action 
unless  he  gives  notice  does  not  render  the  Act  void  as  destroying  the  freedom 
of  contract.  (Pub.  Laws  1911-12,  c.  831,  art.  1,  §  6)  Sayles  v.  Foley  (R.  I.)  98 
Atl.  340.  That  the  law  makes  payments  not  assignable,  or  subject  to  assign- 
ment or  garnishment,  does  not  render  it  unconstitutional  as  limiting  the  right 
to  contract.  Mackin  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49. 
"Liberty"  means  absence  of  arbitrary  restraint,  and  not  immunity  from  rea- 
sonable regulations  imposed  in  the  interests  of  the  community.  (Wk.  Comp. 
Act,  Laws  1911,  c.  74)  State  v.  Clausen,  supra. 

5  7  State  V.  Mountain  Timber  Co.,  75  Wash.  581,  135  Pac.  645;  Sayles  v. 
Foley  (R.  I.)  96  Atl.  340 ;  Evanhoff  v.  State  Industrial  Accident  Commission, 
78  Or.  503,  154  Pac.  106;  Shade  v.  Ash  Grove  Lime  &  Portland  Cement  Co.,  93 
Kan.  257,  144  Pac.  249;  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W. 
1037 ;  Sexton  v.  Newark  District  Telegraph  Co.,  84  N.  J.  Law,  85,  86  Atl.  451.. 
The  Seventh  Amendment  to  the  United  States  Constitution  does  not  forbid  the 
state  to  abolish  or  deny  the  right  of  trial  by  jury,  and  the  Washington  Work- 

5  8  See  note  58  on  following  page. 


14 


WORKMEN  S  COMPENSATION 


68 


and  immunities.^®  They  have  been  likewise  upheld  over  objections 
that  they  impose  a  property  tax  which  is  not  equal,  uniform/"  and 

men's  Compensation  Act  is  not  invalid  because  it  provides  no  jurj'  trial  in 
compensation  proceedings.  Raymond  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (C.  C.  A.) 
233  Fed.  239.  "The  common-law  system  of  making  awards  for  personal  in- 
juries has  no  such  inherent  merit  as  to  make  a  change  desirable.  While  courts 
have  often  said  that  the  question  of  the  amount  of  compensation  to  be  awarded 
for  a  personal  injury  is  one  peculiarly  within  the  province  of  the  jury  to  deter- 
mine, the  remark  has  been  induced  rather  because  no  better  method  for  solving 
the  problem  is  afforded  by  that  system,  than  because  of  the  belief  that  no 
better  method  could  be  devised."  State  v.  Clausen,  65  Wash.  156,  117  Pac. 
1101,  37  L.  R.  A.  (N.  S.)  466.  In  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa) 
154  N.  W.  1037,  the  court  (opinion  by  Judge  Salinger)  says:  "It  is  urged  that 
trial  by  jury  is  denied  of  all  issues  except  the  amount  of  damages,  and  con- 
ceded that  as  to  this  latter  the  defendant  waived  trial  by  jury.  It  is  urged 
that  such  trial  is  denied  without  a  repeal  of  Code,  §  3650,  that  issues  of  fact 
In  an  ordinary  action  must  be  tried  by  jury  unless  the  same  is  waived.  We 
hold  on  this  appeal  that  the  statute  did  not  deprive  the  appellant  of  the  right 
to  a  trial  by  jury  in  cases  where,  as  here,  he  rejects  the  compensation  statute, 
and  that  the  denial  is  an  error  in  interpretation  on  rather  than  obedience  to 
legislative  action.  Without  reference  to  the  constitutional  aspects  of  denying 
jury  trial,  the  statute  cannot  be  unconstitutional  for  denying  trial  by  jury  if  it 
does  not  deny  such  trial.  It  is  true,  the  statute  accomplishes  giving  the  jury 
less  to  do  than  formerly,  and  changes  the  character  of  its  work.     It  can  no 

5s  There  is  no  vested  right  in  any  remedy  for  a  tort  yet  to  happen  which 
the  Constitution  protects.  Except  as  to  vested  rights,  the  legislative  power 
exists  to  change  or  abolish  existing  statutory  and  common-law  remedies.  Com- 
mon and  statute  laws  only  remain  in  force  until  altered  or  repealed.  (Const. 
Schedule,  §  1)  Mackin  v.  Detroit-Timkin  Axle  Co.,  187  INIich.  8,  153  N.  W.  49. 
The  state  may  by  statute  modify  its  common-law  rules  of  liability  in  their 
application,  so  long  as  the  modification  does  not  amount  to  a  regulation  of 
commerce  or  an  interference  with  some  paramount  federal  law.  Lindstrom 
V.  Mutual  S.  S.  Co.  (Minn.)  156  N.  W.  669.  By  an  amendment  to  the  Constitu- 
tion of  California,  it  was  intended  to  establish  the  authority  of  the  Legisla- 
ture to  pass  laws  making  the  employer  and  employe  subject  to  a  system  of 
rights  and  liabilities  different  from  those  prevailing  at  common  law.  (Const, 
art.  20,  §  21)  Western  Metal  Supply  Co.  v.  Pillsbury  (Cal.)  156  Pac.  491. 

59  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037;  Clausen's  Case, 
65  Wash.  156,  117  Pac.  1102,  37  L.  R.  A.  (N.  S.)  466. 

60  (Const,  art.  7,  §§  1,  2)  State  v.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37 
L.  R.  A.  (N.  S.)  466. 


69  ACTS  IN   GENERAL  §    14 

for  a  public  purpose,*'^  appropriate  public  money  for  private  pur- 
poses,''^  delegate  legislative  ®^  or  judicial  power,®*  violate  the  guar- 

longer  pass  upon  whether  the  plaintiff  should  not  be  wholly  defeated  because 
guilty  of  some  degree  of  negligence  contributing  to  the  injury  complained  of, 
and  can  defeat  the  plaintiff  only  if  the  contribution  is  by  self-infliction,  or  by 
negligence  due  to  intoxication.  Other  contributions  will  get  to  it  only  on  a 
plea  of  mitigation.  The  jury  will  no  longer  consider  whether  the  plaintiff 
should  be  defeated  because  the  evidence  shows  he  assumed  the  risk  of  being 
injured  as  he  was — will  not  have  the  question  whether  there  must  be  a  failure 
to  recover  because  the  injury  was  due  to  the  negligence  of  a  fellow  servant. 
It  will  not  have  the  question  whether  the  servant  has  proven  that  his  injury  is 
due  to  the  negligence  of  the  master,  and  will  begin  its  inquiries  by  assuming 
the  master  was  thus  negligent,  and  next  consider  whether  the  employer  had 
proven,  notwithstanding  this  presumption,  that  he  is  wholly  free  from  fault. 
It  is  self-evident  none  of  this  denies  trial  by  jury,  but  merely  changes  the 
rules  under  which  such  trial  shall  proceed."  "While  the  right  of  trial  by 
jury  is  guaranteed  under  our  Constitution,  it  is  a  right  that  any  one  may  waive 
if  he  shall  see  fit,  and,  by  electing  to  come  within  the  provisions  of  the  law, 
an  employer  or  employe  elects,  in  the  first  instance,  to  submit  any  dispute  that 
may  arise  to  a  board  of  arbitrators  without  the  intervention  of  any  court  or 
jury.  It  will  be  observed  that  the  act  does  not  make  the  finding  and  award 
of  the  board  of  arbitrators  selected  under  its  provisions  final.  Either  party 
feeling  aggrieved  at  the  award  has  the  right  to  appeal  to  a  court  of  record, 
when  the  matter  is  heard  de  novo,  and  where  either  party  has  the  right  to 
demand  a  trial  by  jury.  It  will  thus  be  seen  that,  even  though  the  employ^ 
should  elect  to  come  within  the  provisions  of  the  act,  he  is  not  wholly  deprived 
of  a  trial  by  jury."  Deibeikis  v.  Ling-Belt  Co.,  261  111.  454,  104  N.  E.  211,  Ann. 
Cas.  1915A,  241.  In  view  of  the  fact  that  an  appeal  is  provided,  on  which  a 
jury  trial  may  be  had,  the  Compensation  Act  is  not  invalid  as  taking  away  the 
right  to  a  jury  trial,  in  that  it  provides  for  the  determination  of  claims  by  a 
board.    Middleton  v.  Texas  Power  &  Light  Co.  (Tex.)  185  S.  W.  556. 

61  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037. 

62  Lewis  and  Clark  County  v.  Indus.  Ace.  Bd.  (Mont.)  155  Pac.  268.  Under 
the  Michigan  Act,  there  is  no  attempt  to  appropriate  public  money  for  private 
purposes.  The  expenditure  of  public  funds  to  defray  the  expense  of  admin- 
istering this  law  rests  upon  considerations  of  public  policy,  just  as  the  state 
provides  for  protection  of  those  engaged  in  hazardous  employment,  and  sup- 
ports a  labor  department  for  the  general  good,  but  primarily  concerned  with 
the  condition  of  industrial  workers.  There  can  be  no  question  that  the  Legis- 
lature may  determine  that  an  act  of  this  nature  concerning  a  portion  of  the 

63  Sayles  v.  Foley  (R.  I.)  96  Atl.  340. 
6  4  See  note  64  on  following  page. 


§    14  workmen's   COMrENSATION  70 

anty  to  every  state  of  a  republican  form  of  government,^ ^  and  of 
protection  against  unreasonable  searches  and  seizures,^^  and  take 

body  politic  is  necessary  or  conducive  to  promotion  of  tlie  general  welfare  of 
the  people  of  the  state  and  make  constitutional  appropriation  of  public  funds 
raised  by  taxation  to  carry  the  law  into  effect.  Mackin  v.  Detroit-Timkin  Axle 
Co.,  1S7  Mich.  8,  153  N.  W.  49,  distinguishing  Corn  Ass'n  v.  And.  Gen.,  150  Mich. 
G9,  11.3  N.  W,  5S2,  holding  that  appropriating  funds  for  the  use  of  a  voluntary, 
unincorporated  society,  the  membership  of  which  is  limited  to  residents  of  the 
slate  actively  interested  in  the  improvement  of  corn,  is  an  attempt  to  devote 
public  funds  to  a  private  purpose  in  violation  of  the  Constitution.  On  the 
same  principle  it  was  held  a  bounty  on  the  manufacture  of  beet  sugar  could 
not  be  given  by  the  state  (Mich.  Sugar  Co.  v.  Aud.  Gen.,  124  Mich.  677,  83  N. 
W.  G25,  56  L.  R.  A.  329,  83  Am.  St.  Rep.  354),  and  townships  could  not  raise 
money  by  taxation  to  aid  a  private  corporation  to  build  a  railroad  (People  ex 
rel.  Detroit  &  H.  R.  Co.  v.  Township  Board  of  Salem,  20  Mich.  452,  4  Am.  Rep. 
400).  The  fatal  objection  to  the  laws  under  consideration  in  those  cases  was 
that  they  attempted  to  authorize  a  public  tax  for  a  mere  private  purpose,  and 
whatever  may  have  been  said  in  those  cases  as  to  discrimination  between 
different  classes  of  occupations  was  directed  to  that  proposition. 

6  4  State  V.  Creamer,  85  Ohio  St.  349,  97  N.  E.  602,  39  L.  R.  A.  (N.  S.)  694. 
(Workmen's  Compensation  Act,  §§  25-35)  Hunter  v.  Colfax  Consol.  Coal  Co. 
(Iowa)  154  N.  W.  1037;  Evanhoff  v.  State  Industrial  Accident  Commission,  78 
Or.  503,  154  Pac.  106.  "The  contention  that  the  Industrial  Accident  Board 
and  arbitration  committees  provided  for  in  said  Act  are  unconstitutional 
bodies,  because  the  powers  conferred  and  duties  imposed  upon  them  combine 
executive,  administrative,  and  judicial  functions,  while  the  Constitution  vests 
the  judicial  power  in  the  courts,  forbidding  any  one  of  the  three  departments 
of  government  exercising  the  powers  belonging  to  another,  is  not  tenable.  This 
board  was  created  purely  as  an  administrative  agency  to  carry  the  provi- 
sions of  the  Act  into  effect.  The  Act  being  elective,  it  is  operative  only  as  to 
those  who  choose  to  come  within  its  provisions,  and  in  that  particular  it  is  a 
board  of  arbitration  by  agreement;  but,  aside  from  that  consideration,  it  is 
but  an  administrative  body,  vested,  it  is  true,  with  various  and  important 
duties  aud  powers,  some  of  them  quasi  judicial  in  their  nature,  but  without 
that  final  authority  to  decide  and  render  enforceable  judgment,  which  con- 
stitutes the  judicial  power.  Its  determinations  and  awards  are  not  enforceable 
by  execution  or  other  process  until  a  binding  judgment  is  entered  thereon  in 
a  regularly  constituted  court.  Section  13,  pt.  3,  of  said  Act.  'The  judicial 
povrer,  even  when  used  in  its  widest  and  least  accurate  sense,  involves  the 

6  5  (Indus.  Ins.  Law,  Laws  1911,  c.  74)  State  v.  Mountain  Timber  Co.,  75 
Wash.  581,  135  Pac.  645. 

66  (Indus.  Ins.  Law,  Laws  1911,  c.  74)  Id. 


71  ACTS   IN   GENERAL  §14: 

away  the  right  to  resort  to  courts  to  settle  controversies."'^  At- 
tacks made  on  the  Compensation  Acts  of  Michigan,  New  Jersey, 

power  to  "hear  and  determine"  the  matters  to  be  disposed  of;  and  this  can 
only  be  done  by  some  order  or  judgment  which  needs  no  additional  sanction 
to  entitle  it  to  be  enforced.  No  action  which  is  merely  preparatory  to  an 
order  or  judgment  to  be  rendered 'by  some  different  body  can  be  pi'operly 
termed  judicial.'  Underwood  v.  McDuffee,  15  Mich.  361,  93  Am.  Dec.  194.  An 
examination  of  the  many  duties  and  responsibilities  imposed  upon  the  board 
by  the  act  of  a  purely  administrative  nature  makes  plain  that  those  which 
may  be  termed  quasi  judicial  are  but  incidental,  and  only  exercised  when 
appeal  is  taken  from  an  arbitration."  Mackin  v.  Detroit-Timkin  Axle  Co.,  187 
Mich.  8,  153  N.  W.  49.  In  Reck  v.  Whittlesberger,  ISl  Mich.  463,  148  N.  W.  247, 
Ann.  Cas.  1916C,  771,  though  constitutional  questions  were  not  there  involved, 
this  court,  in  considering  the  powers  and  duties  of  the  Industrial  Accident 
Board,  held  that,  as  a  creature  of  statute,  it  is  primarily  an  administrative 
body  created  by  the  act  to  carry  its  provisions  into  effect,  having  for  the  effi- 
cient administration  of  the  law  amongst  its  many  duties  and  responsibilities 
quasi  judicial  powers  in  certain  particulars.  The  constitutional  objection  that 
judicial  power  is  lodged  in  an  administrative  board  under  Workmen's  Com- 
pensation Acts  has  been  carefully  considered,  and  squarely  decided  against 
the  contention  in  State  ex  rel.  v.  Creamer,  85  Ohio  St.  349,  97  N.  E.  G02,  39  L, 
R.  A.  (N.  S.)  694 ;  Cunningliam  v.  N.  W.  Imp.  Co.,  44  Mont.  ISO,  119  Pac.  554 ; 
Borgnis  v.  Falk  Co.,  147  Wis.  327,  133  N.  W.  209,  37  L.  R.  A.  (N.  S.)  489; 
Hawkins  v.  Bleakley  (D.  C.)  220  Fed.  378.  In  Hunter  v.  Colfax  Consol.  Coal 
Co.  (Iowa)  154  N.  W.  1037,  the  court  (opinion  by  Judge  Salinger)  says:  "Con- 
tracts by  which  the  parties  undertake  to  deprive  themselves  in  toto  of  the 
right  to  resort  to  the  courts  to  settle  controversies  between  them,  in  which  are 
stipulated  away  all  the  rights  of  each  or  either  to  resort  to  the  tribunals 
created  by  law,  have  been  universally  condemned.  See  Wood  v.  Humphrey, 
114  Mass.  185 ;  Pearl  v.  Harris,  121  Mass.  390;  Barron's  Case,  121  U.  S.  186, 
7  Sup.  Ct.  931,  935,  30  L.  Ed.  915.  Appellant  contends  that  the  act  violates  this 
rule.  If  we  assume  the  statute  would  be  void  if  it  operated  to  oust  the  courts 
of  all  jurisdiction  to  try  controversies  between  employer  and  employe,  it  is 
an  immaterial  concession  in  the  cases  wherein  the  Act  is  rejected ;  for,  when 
rejected,  the  courts  are  not  ousted  of  jurisdiction  in  toto,  and,  as  we  A'iew  it, 
not  deprived  of  it  at  all.  Where  the  Act  is  rejected,  the  full  dispute  between 
the  parties  is  still  submitted  by  ordinary  proceedings,  and  tried  in  the  usual  way. 
True,  some  mere  rules  of  procedure  are  changed,  some  defenses  are  elimi- 
nated, and  there  is  some  change  in  burden  of  proof.  Even  if  it  be  assumed 
that  these  changes  are  unauthorized,  the  objection  is  not  sustained  that  on 

0  7  (Wk.   Comp.  Act,  §§  10,  15,  25-35)   Hunter  v.   Colfax   Consol.   Coal   Co. 
(Iowa)  154  N.  W.  1037. 


§  14  workmen's  compensation  72 

Oregon,  Texas,  Montana,  Kansas,  and  Washington  on  the  ground 
that  their   titles   insufficiently   expressed   their   subject-matter,   or 

rejection  of  the  act  the  courts  no  longer  have  jurisdiction  to  try  suits  for  the 
injury  of  an  employ§.  A  somewhat  more  difficult  question  arises  when  the 
provisions  of  the  act  are  accepted.  In  that  case,  if  the  parties  cannot  come 
to  an  agreement,  compensation,  fixed  by  statute  schedule,  is  awarded  by  arbi- 
tration provided  for  in  the  act.  In  a  sense,  then,  the  acceptance  of  the  statute 
operates  to  take  from  the  courts  so  much  of  the  controversy  as  is  determined 
by  the  applying  of  the  statute  schedules  through  the  agency  of  the  statute 
arbitrators.  Before  we  reach  the  question  whether,  if  this  constitute  a  total 
ouster  of  the  jurisdiction  of  the  courts,  it  would  invalidate  the  act,  we,  of 
course,  have  to  determine  whether  such  total  ouster  is  so  effected.  "We  are 
forced  to  deal  with  this  question  as  one  of  first  impression,  because  no  de- 
cision that  sustains  the  Compensation  Act  of  other  states  is  applicable.  The 
Washington  Act  and  that  of  Massachusetts  reserve  recourse  to  the  courts  and 
full  judicial  review.  In  Sabre's  Case,  86  Vt.  347,  85  Atl.  695,  Ann.  Cas.  1915C, 
1269,  a  delegation  is  sustained  because  in  the  end  the  matter  may  get  to  the 
Supreme  Court  and  have  full  review.  Borgnis  Case,  147  Wis.  327,  133  N.  W. 
209,  210,  37  L.  R.  A.  (N.  S.)  489,  sustains  the  Wisconsin  Act  with  a  holding 
that  there  is  a  review  if  the  act  be  without  power  or  fraudulent,  that  if  the 
board  act  without  or  in  excess  of  its  jurisdiction  there  may  be  action  in  court 
to  set  aside  the  award,  and  that  this  may  also  be  done  if  its  findings  of  fact 
are  not  supported  by  the  evidence.  Our  act  has  no  such  reservations,  in  terms, 
and  therefore  these  decisions  afford  us  no  light.  It  does  not  constitute  an 
agreement  for  complete  ouster  of  the  jurisdiction  of  the  courts  to  provide  by 
contract  for  the  arbitration  of  special  matters,  such  as  agreement  concerning 
the  amount  of  loss  due  under  an  insurance  policy,  an  agreement  how  some 
facts  shall  be  fixed  and  leaving  ultimate  liability  or  nonliability  to  be  settled 
by  the  courts.  Certain  facts  may  be  fixed  by  a  person  selected  by  contract  for 
that  purpose,  so  long  as  the  ultimate  question  at  issue  may  still  be  litigated  in 
the  courts.  Supreme  Council  v.  Frosinger,  125  Ind.  52,  25  N.  E.  129,  9  L.  R. 
A.  501,  21  Am.  St.  Rep.  196 ;  Wlhitney  v.  Accident  Ass'n,  52  Minn.  378,  54  N. 
W.  184;  Insurance  Co.  v.  Morse,  20  Wall.  445,  22  L.  Ed.  365;  Stephenson  v. 
Insurance  Co.,  54  Me.  55;  Mentz  v.  Ins.  Co.,  79  Pa.  478,  21  Am.  Rep.  SO;  Reed 
V.  Ins.  Co.,  138  Mass.  572 ;  Fox  v.  Accident  Ass'n,  96  Wis.  390,  394,  395,  71  N. 
W.  363.  The  following  cases  also  throw  some  light  on  the  question:  Guaranty 
Co.  V.  Railroad  Co.,  139  U.  S.  137, 11  Sup.  Ct.  512,  35  L.  Ed.  116;  Gitting's  Case, 
2  Ohio  St.  21;  Conner's  Case,  1  Ohio  St.  166;  Kill  v.  Hollister,  1  Wilson, 
129."  The  Compensation  Act  is  not  invalid  as  delegating  judicial  authority 
to  a  board.  Middleton  v.  Texas  Power  &  Light  Co.  (Tex.)  185  S.  W.  556.  The 
judicial  power  conferred  on  the  Commission  by  the  California  Act  does  not 
make  it  invalid  as  violative  of  Const,  art.  6,  §  1,  in  view  of  the  authority  con- 
ferred on  the  Legislature  by  article  20,  §  21,  authorizing  the  enactment  of 


73  ACTS  IN  GENERAL  §    14 

that  they  contained  more  than  one  subject,  have  been  unsuccess- 
ful.®^    An  Act  will  not  be  declared  void  in  its  entirety  because 

compensation  laws.     Western  Metal  Supply  Co.  v.  Pillsbury   (Cal.)   156  Pac. 
491. 

6  8  Mackin  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49;  Adams  v. 
Acme  White  Lead  &  Color  Wks.,  Op.  Mich.  Indus.  Ace.  Bd.  31 ;  Consumers' 
Lignite  Co.  v.  Grant  (Tex.  Civ.  App.)  181  S.  W.  202 ;  Lewis  and  Clark  County 
V.  Indus.  Ace.  Bd.  (Mont.)  155  Pac.  268;  Postex  Cotton  Mill  Co.  v.  McCamy 
(Tex.  Civ.  App.)  184  S.  W.  570;  Memphis  Cotton  Oil  Co.  v.  Tolbert  (Tex.  Civ. 
App.)  171  S.  W.  309,  7  N.  C.  C.  A.  547 ;  Huyett  v.  Pennsylvania  R.  Co.,  86  N.  J. 
Law,  683,  92  Atl.  58 ;  Allen  v.  Millville,  87  N.  J.  Law,  356,  95  Atl.  130.  The  ti- 
tle of  the  Compensation  Act  expresses  the  single  general  subject  of  the  Act. 
Middleton  v.  Tex.  Power  &  Light  Co.  (Tex.)  185  S.  W.  556.  The  title  of  the 
original  Kansas  Act,  repeated  in  the  title  of  the  amendatory  act,  "An  act  to 
provide  compensation  for  workmen  injured  in  certain  hazardous  industries,"  is 
general  and  comprehensive,  not  limited  or  restrictive,  and  fairly  includes  every 
provision  of  the  Act.  (Laws  1911,  c.  218  ;  Laws  1913,  c.  216)  Shade  v.  Ash  Grove 
Lime  &  Portland  Cement  Co.,  93  Kan.  257,  144  Pac.  249;  Lynch  v.  Chase,  55 
Kan.  367,  40  Pac.  666 ;  Rathbone  v.  Hopper,  57  Kan.  240,  45  Pac.  610,  34  L.  R. 
A.  674;  Harrod  v.  Latham,  77  Kan.  466,  95  Pac.  11;  Payne  v.  Barlow,  84  Kan. 
132,  113  Pac.  432 ;  City  of  Winfield  v.  Bell,  89  Kan.  96,  130  Pac.  680.  The  Act 
does  not  violate  Const,  art.  9,  §  7,  providing:  "Laws  making  appropriations  for 
the  salaries  of  public  oflicers  and  other  current  expenses  of  the  state  shall 
contain  provisions  upon  no  other  subject" — the  evident  purpose  of  this  provi- 
sion being  to  prevent  matters  foreign  to  the  general  purpose  of  appropriation 
bills  from  being  attached  to  them  as  riders,  thereby  taking  advantage  of  the 
necessity  of  the  state  for  money  to  defray  its  current  expenses  and  to  pay  its 
officers  to  pass  measures  that  perhaps  would  otherwise  have  been  defeated,  and 
the  Compensation  Act  not  being  primarily  an  act  to  appropriate  money  to  pay 
salaries  or  other  current  expenses,  nor  an  appropriation  bill  in  the  sense  that 
bills  providing  for  general  current  expenses  or  salaries  of  the  constitutional 
officers  of  the  state  are  such.  Evanhoff  v.  State  Industrial  Accident  Commis- 
sion, 78  Or.  503,  154  Pac.  106.  "The  first  clause  of  the  title  indicates  that  it 
is  an  act  relating  to  the  compensation  of  injured  workmen  in  any  industry  of 
the  state,  and  the  employment  of  the  language  further  on  in  the  title  'abolish- 
ing the  doctrine  of  negligence  as  a  recovery  of  damages  against  employers,'  is 
indicative  of  the  evil  the  Act  seeks  to  overcome  rather  than  the  new  remedy 
created.  The  title  is  plainly  broad  enough  to  indicate  that  the  Act  is  intended 
to  furnish  the  only  compensation  to  be  allowed  workmen  subsequent  to  its 
becoming  law,  and  as  such  clearly  includes  any  and  all  rights  of  action  there- 
tofore existing  in  which  such  compensation  might  have  been  obtained."  (Wk. 
Comp.  Act,  Laws  1911,  c.  74)  Peet  v.  Mills,  76  Wash.  437,  136  Pac.  685,  4  N. 
C.  C.  A.  780,  L.  R.  A.  1916A,  358,  Ann.  Cas.  1915D,  154. 


§  14  workmen's  compensation  74 

of  void  provisions  thereof,  where  it  contains  separable  valid  pro- 
visions.^® 

The  Miner-s'  Compensation  Act  enacted  in  Montana  in  1909,  was 
held  unconstitutional,  as  depriving  the  employer  who  paid  com- 
pensation under  the  Act  of  the  equal  protection  of  the  laws,  in  that 
it  did  not  protect  him  from  being  sued  and  compelled  to  pay  dam- 
ages in  addition. ^°  A  new  Act,  general  in  its  operation,  has  since 
been  enacted  in  that  state  and  upheld  by  its  courts.''^ 

The  Texas  Act  is  not  invalid  as  creating  a  private  corporation 
otherwise  than  by  general  law,  the  designation  of  the  insurance 
association  as  a  corporation  being  a  mere  matter  of  convenience,  not 
making  it  a  private  corporation,  and  the  association  being  an 
agency  for  the  proper  administration  of  the  law.''^ 

The  constitutional  amendment  of  California,  which  authorizes 
the  Legislature  to  create  and  enforce  a  liability  on  the  part  of  em- 
ployers to  compensate  their  employes  for  any  injury  occurring  in 
the  course  of  their  employment,  authorized  the  Legislature  to  pro- 
vide that  medical  and   surgical  treatment  and  support  for  those 

dependent  on  the  employe  should  be  furnished  by  the  employ- 
er.^3 

The  effect  of  the  elective  or  compulsory  nature  of  an  Act  on  its 
validity  is  reserved  for  consideration  in  Chapter  H. 

6  9  Consumers'  Lignite  Co.  v.  Grant  (Tex.  Civ.  App.)  181  S.  W.  202.  If 
section  22  of  tlie  Kentucky  Act  of  1916  (Laws  1916,  c.  33)  were  invalid,  in  tbat 
it  discriminates  against  aliens  and  their  dependents,  and  also  against  Ameri- 
can labor  in  favor  of  foreign  labor,  this  would  not  make  the  Act  unconstitu- 
tional as  a  whole,  since  this  section  is  not  so  related  to  the  other  sections  that 
it  might  not  be  eliminated  and  leave  a  complete  act  in  such  form  as  would 
accomplish  the  chief  purpose  of  the  legislation.  Greene  v.  Caldwell,  170  Ky. 
571,  186  S.  W.  648. 

7  0  Cunningham  v.  Northwestern  Imp.  Co.,  44  Mont.  180,  119  Pac.  554. 
71  Lewis  and  Clark  County  v.  Indus.  Ace.  Com.  (Mont.)  155  Pac.  268. 

7  2  Middleton  v.  Texas  Power  &  Light  Co.  (Tex.)  185  S.  W.  556. 

7  3  (Const,  art.  20,  §  21)  Western  Metal  Supply  Co.  v.  Pillsbury  (Cal.)  156 
Pac.  491. 


I 


75  ACTS   IN   GENERAL  §    15 

§  15.     New  York — Ives  Case 

In  the  case  of  Ives  v.  South  Buffalo  Ry.  Co.,  which  has  been 
frequently  cited  and  discussed,  not  only  by  the  courts  of  New- 
York,  but  by  the  courts  of  the  various  statei  which  have  adopted 
Compensation  Acts,  the  earlier  Workmen's  Compensation  Act  of 
New  York  was  held  unconstitutional  on  the  ground  that  it  made 
the  employer  liable  in  a  suit  for  damages,  though  without  fault 
and  without  regard  to  the  fault  of  the  injured  employe  short  of 
willful  and  serious  misconduct.'^*  This  Act,  though  based  on  the 
proposition  that  the  risk  of  accidental  injuries  in  a  hazardous 
employment  should  be  borne  by  the  business  and  that  the  loss 
should  not  fall  on  the  injured  employe  and  his  dependents,  who 
were  unable  to  bear  it  or  to  protect  themselves  against  it,  made 
no  attempt  to  distribute  the  burden,  but  subjected  the  employer 
to  an  action  for  damages.  The  present  Act  of  that  state,  adopted 
pursuant  to  an  amendment  to  the  state  Constitution,^^  distributes 
the  burden  equitably  over  the  industries  affected.  It  allows  com- 
pensation only  for  the  loss  of  earning  power,  but  by  the  creation 
of  a  state  insurance  fund,  or  by  the  substitute  methods  provided, 
it  insures  that  the  injured  employe  or  his  dependents  will  prompt- 
ly receive  a  certain  sum  undiminished  by  the  expenses  of  litiga- 
tion. It  has  been  held  to  be  quite  dissimilar  to  the  former  Act 
and  to  be  constitutional.''^^ 

7  4  Ives  V.  South  Buffalo  Ry.  Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  L.  R.  A. 
(N.  S.)  162,  Ann.  Gas.  1912B,  156. 

7  5  Const.  N.  Y.  art.  1,  §  19,  adopted  November  4,  1913,  was  adopted  in  ac- 
cordance with  a  suggestion  of  the  court  in  the  Ives  Case,  and,  so  far  as  the 
due  process  of  law  or  any  other  provision  of  the  state  Constitution  is  con- 
cerned, amply  sustains  the  Workmen's  Compensation  Law.  Jensen  v.  South- 
ern Pac.  Co.,  215  N.  Y.  514,  109  N.  E.  600,  L.  R.  A.  1910A,  403,  Ann.  Cas. 
1916B,  276. 

7  6  Id.,  distinguishing  Ives  v.  South  Buffalo  Ry.  Co.,  supra. 


§  16  workmen's  compensation  76^ 

§  16.     Kentucky 

The  Kentucky  Workmen's  Compensation  Act  of  March  21,  1914, 
which  was  compulsory  on  both  employer  and  employe,  was  held  to 
be  in  conflict  with  a^  provision  of  the  Constitution  of  that  state 
which  prohibits  the  Legislature  from  limiting  the  amount  recov- 
erable for  injuries  or  death. '^^  In  so  holding,  the  court,  in  an  opin- 
ion by  Special  Judge  Dorsey,  considered  the  decisions  and  laws 
of  other  states,  and  said :  "It  seems  clear  to  us  that  such  parts  of 
this  act  as  take  from  the  personal  representative  or  estate  of  a 
deceased  employe,  who  left  no  dependents  surviving  him,  any  part 
of  the  compensation  due  such  representative  or  his  estate,  and  di- 
rects its  payment  into  this  fund  for  the  benefit  of  other  people,  is 
a  violation  of  the  *  *  *  Constitution.  The  Legislature  has 
no  right  to  limit  the  damages  recovered,  for  the  death  of  an  em- 
ploye negligently  killed,  to  his  dependents.  *  *  *  '^qt  do  we 
think  the  Legislature  has  the  right  to  take  what  is  due  the  estate 
of  one  man,  and  give  it  to  another.  While  the  Legislature  may 
say  how  the  recovery  may  go  and  to  whom  it  shall  belong,  it 
cannot  say  this  recovery  may  be  had  from  the  employer,  then  in 
the  next  breath  give  it  to  this  fund.  It  then  necessarily  follows 
that  such  parts  of  this  Act  under  consideration  as  give  to  this 
board  of  compensation  without  the  voluntary  contract  of  the  em- 
ploye, the  right  to  recover  from  the  employer  for  the  death  of  the 
employe  leaving  no  dependents,  and  such  other  parts  of  the  Act 
as  coerce  the  employe  to  consent  or  to  make  a  contract  that  such 
compensation  shall  be  paid  into  this  compensation  fund,  are  un- 
authorized and  void.  There  may  never  have  been  a  word  or  a 
syllable  between  the  employer  and  the  employe  in  regard  to  a  con- 
tract for  employment  to  labor,  yet  the  Act  provides  that  such  con- 
tract shall  be  conclusively  presumed  to  have  been  made  between 

7  7  Kentucky  State  Journal  Co.  v.  Workmen's  Compensation  Board,  161  Ky. 
5G2,  170  S.  W.  1166,  L.  R.  A.  1916A,  389,  Ann.  Cas.  1916B,  1273,  affirmed  162 
Ky.  387,  172  S.  W.  674,  L.  R.  A.  1916A,  402. 


I 


77  ACTS   IN   GENERAL  §    16 

the  employer  and  employe,  if  the  employe  continues  to  work  for 
the  employer  after  the  employer  has  posted  notices,  in  some  con- 
spicuous places  about  his  place  of  business,  to  the  effect  that  he 
has  paid  his  premiums  into  the  fund  and  accepted  the  provisions  of 
the  Act.  We  cannot  subscribe  to  the  proposition  that  this  is  a  vol- 
untary contract,  even  on  the  part  of  the  employer.  We  have  been 
referred  to  the  Workmen's  Compensation  Act  passed  by  the  Leg- 
islature of  the  state  of  Washington.  This  Washington  Act  was 
held  by  the  court  in  the  above  cause  not  to  be  compulsory,  al- 
though it  took  away  from  the  employer  the  defenses  of  assumed 
risk,  negligence  of  a  coemploye,  and  contributory  negligence. 
There  being  no  constitutional  restrictions,  the  Legislature  of  the 
state  of  Washington  had  the  power  to  enact  the  statute  above 
referred  to,  and  it  was  upheld  by  the  state  Supreme  Court.  The 
Legislature  of  the  state  of  Ohio  adopted  a  similar  Workmen's 
Compensation  Act.  But  here  the  injured  employe  had  the  right  to 
have  a  jury  fix  his  compensation  within  the  limits  and  under  the 
rules  prescribed  by  the  act.  The  Wisconsin  Supreme  Court,  in 
Borgnis  v.  Falk  Co.,  held  that  a  provision  of  the  Workmen's  Com- 
pensation Act  of  that  state  which  took  away  from  the  employer 
who  refused  to  accept  the  provision  of  the  Act  the  defenses  of 
assumed  risk  and  negligence  of  a  coemploye  was  not  compul- 
sory.''^^ The  state  of  New  York  now  has  a  Compensation  Act  simi- 
lar to  the  one  before  us,  but  it  was  especially  authorized  by  an 
amendment  to  the  New  York  Constitution.  It  will  be  observed 
here  that  there  was  no  constitutional  provision  in  the  Consti- 
tution of  Washington,  Ohio,  Wisconsin,  or  New  York  similar 
to  section  54  of  the  Kentucky  Constitution,  which  denied  to  the 
Legislature  of  the  state  of  Kentucky  the  'power  to  limit  the 
amount  to  be  recovered  for  injuries  resulting  in  death,  or  for  in- 
juries to  person  or  property.'  The  Workmen's  Compensation  Acts 
in  all  of  the  states  above  named,  as  well  as  in  New  Jersey,  Massa- 

78  Borgnis  v.  Falk  Co.,  147  Wis.  327,  133  N.  W.  209,  37  L.  R.  A.  (N.  S.)  489. 


§  16  workmen's  compensation  78 

chusetts,  and  California,  differ  from  the  Kentucky  Act  in  that  there 
is  an  appeal  granted  to  the  state  courts,  or  a  jury  is  permitted 
to  fix  the  amount  of  compensation.  This  court  is  bound  by  the 
limitations  contained  in  the  Kentucky  Constitution."  '^®  However, 
any  employe  coming  within  the  Act  may  voluntarily  agree  to 
accept  its  provisions  fixing  and  limiting  his  recovery.  He  may 
likewise  voluntarily  accept  the  provisions  fixing  the  amount  that 
shall  be  recovered  in  case  of  his  death,  and  said  sum  shall  be  paid 
to  his  dependents  or  legal  representatives.  But  the  statute  can- 
not direct  that  this  sum  shall  in  any  event  be  paid  into  the  com- 
pensation fund.®"  This  Act,  moreover,  did  not  violate  any  pro- 
visions of  the  Constitution  so  far  as  it  affected  the  employer,^^ 
and  deprived  injured  employes  of  the  right  to  a  jury  trial;  ^^  but  it 
was  held  essential,  in  order  to  render  it  valid,  that  provision  be 
made  for  appeal  to  a  court  of  competent  jurisdiction  in  all  cases 
where  compensation  is  denied  or  a  less  sum  allowed  than  is 
.  claimed. ^^ 

The  recently  adopted  Kentucky  Act  of  1916  is  not  violative  of 
the  due  process  of  law  provision  of  the  federal  Constitution.^* 
Nor  does  it  violate  a  provision  of  the  state  Constitution  relative 
to  title  and  subject-matter  of  statutes,  or  a  provision  prohibiting 
common  carriers  from  contracting  for  relief  from  common-law 
liability,  or  a  provision  prohibiting  the  establishment  of  courts  not 
provided  for  by  the  Constitution.^^     It  is  not  special  legislation, 

7  9  Kentucky  State  Journal  Co.  v.  Workmen's  Compensation  Board,  161 
Ky.  5G2,  170  S.  W.  1166,  L.  R.  A.  1916A,  3S9,  Ann.  Cas.  1916B,  1273,  affirmed 
in  162  Ky.  387,  172  S.  W.  674,  L.  R.  A.  1916A,  402. 

80  Kentucky  State  Journal  Co.  v.  Workmen's  Compensation  Board,  162 
Ky.  3S7,  172  S.  W.  674,  L.  R.  A.  1916A,  402,  affirming  161  Ky.  562,  170  S.  W. 
1166,  L.  R.  A.  1916A,  3S9,  Ann.  Cas.  1916B,  1273,  on  rehearing. 

81  Id. 

8  2  Id. 

83  Id. 

84  Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648. 

85  Id. 


79  ACTS  IN  GENERAL  §    17 

which  legislation  applies  to  particular  places  or  persons  as  dis- 
tinguished from  classes  of  places  or  persons.  Nor  is  it  invalid 
because  no  jury  trial  is  allowed,  since  the  parties  may  consent  to 
a  trial  without  a  jury  and  this  is  what  parties  accepting  the  Act 
agree  to  do.  It  is  not  open  to  the  objection  that  it  is  class  leg- 
islation. All  that  it  proposes  to  do  is  to  create  a  class  out  ol 
described  employers  and  employes  and  deal  with  this  class  apart 
from  other  classes  of  employers  and  employes.  In  making  clas- 
sifications like  this,  it  is  obviously  impossible  to  draw  the  line  of 
separation  with  such  accuracy  as  to  include  all  who  might  well 
be  brought  within  the  class  or  to  include  all  who  might  be  left 
without  it.  The  objection  to  the  Act  of  1914  that  the  right  of  ap- 
peal to  the  courts  by  the  complaining  employe  was  so  limited  as  to 
practically  deny  any  appeal  and  make  the  judgment  of  the  Com- 
pensation Board  final  was  met  in  the  Act  of  1916  by  an  elaborate 
scheme  by  which  the  courts  may  review  the  final  decisions  of  the 
compensation  boards.  That  section  11  of  the  Act  of  1916  makes 
radical  changes  in  the  law  of  parent  and  child  does  not  make  the 
Act  unconstitutional.^® 

§  17.     Classification 

While  no  discrimination  which  is  palpably  arbitrary  and  unrea- 
sonable, and  not  based  on  some  reason  of  public  policy,  will  be 
sustained  by  the  courts,"  it  does  not  necessarily  render  an  Act  un- 

86  Id. 

8  7  Hunter  v.  Colfax  Consol.  Coal  Co.  (Towa)  154  N.  W.  1037.  A  wholly 
arbitrary  classification  will  not  be  sustained — sucli  for  instance,  as  rests  whol- 
ly on  the  nature  of  the  employer's  business,  when  it  should  rest  upon  difference 
in  the  nature  of  the  employment  (Cleveland  v.  Foland,  174  Ind.  411,  91  N. 
E.  594,  92  N.  E.  165;  Kinney's  Case,  171  Ind.  612,  85  N.  E.  954,  23  L.  R. 
A.  [N.  S.]  711),  or  where  the  exaction  of  a  peddler's  license  is  differentiated 
on  whether  the  peddler  be  or  be  not  a  veteran  of  the  Civil  War  (Garbroski's 
Case,  111  Iowa,  496,  82  N.  W.  959,  56  L.  R.  A.  570,  82  Am.  St.  Rep.  524),  or 
singling  out  from  the  general  law  of  the  state  only  such  masters  and  servants 
as  are  railroad  employers  and  employes,  and  though  others  are  in  like  situa- 


3  17  workmen's  compensation  ■         80 

constitutional  that  some  inequality  exists  in  the  classification.  In- 
deed, the  very  idea  of  classification  is  that  of  inequality.^'  It 
is  therefore  only  required  that  the  classification  be  as  reason- 
able and  just  as  practicable  as  conditions  will  permit.""  The  ques- 
tion as  to  what  dififerences  or  peculiarities  of  conditions  or  business 
authorize  the  application  of  a  dififerent  rule  to  those  affected  by  a 
particular  condition  or  engaged  in  a  particular  business  than  is 
applied  to  the  remainder  of  the  community  is  for  the  Legislature, 

tion  (Railway  v.  Westby,  178  Fed.  619,  102  C.  C.  A.  65,  47  L.  R.  A.  [N.  S.]  97, 
to  which,  however,  Sonsmith's  Case,  173  Mich.  57,  138  N.  W.  356,  360,  ruus 
counter). 

8  8  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037.  It  is  not  con- 
trolling that  some  inequality  may  be  occasioned.  Melton's  Case,  218  U.  S. 
36  30  Sup.  Ct.  676,  54  I>.  Ed.  921,  47  L.  R.  A.  (N.  S.)  84 ;  Bank  v.  Common- 
wealth, 167  U.  S.  461,  17  Sup.  Ct  829,  42  L.  Ed.  236;  Railway  v.  JIackey, 
127  U.  S.  205,  8  Sup.  Ct.  1163,  32  L.  Ed.  107;  Railway  v.  Matthews,  174 
U.  S.  106,  19  Sup.  Ct.  609,  43  L.  Ed.  909.  No  rigid  equality  is  required,  and 
wide  latitude  by  the  courts  is  permitted  in  the  discretion  and  wisdom  of  the 
Legislature.  Hayes  v.  Missouri,  120  U.  S.  68,  7  Sup.  Ct.  350,  30  L.  Ed.  578 ; 
Bell's  Gap  Railroad  v.  Pennsylvania,  134  U.  S.  232,  237,  10  Sup.  Ct  533,  33 
L.  Ed.  892 ;  Insurance  Co.  v.  Daggs,  172  U.  S.  557,  19  Sup.  Ct.  281,  43  L.  Ed. 
552;  Sonsmith's  Case,  173  Mich.  57,  138  N.  W.  356,  300;  Button's  Case,  67 
Fla.  370,  65  South.  282.  It  suffices  if  the  differentiation  "is  practicable"  (In- 
surance Co.  V.  Daggs,  supra),  and  if  the  classification  and  discrimination  is 
"judicious"  (State  v.  Powers,  38  Ohio  St.  63).  White  not  without  limit,  there 
is  inhibited  only  "clear  and  hostile  discrimination  against  particular  per- 
sons and  classes,  especially  such  as  are  of  unusual  character  and  known  to 
the  practice  of  our  government."  Bell's  Gap's  Case,  supra.  The  classification 
adopted  by  the  Act  not  being  arbitrary  or  unreasonable,  does  not  invalidate 
the  Act  Middleton  v.  Texas  Power  &  Light  Co.  (Tex.)  185  S.  W.  556.  The 
failure  of  the  Boynton  Act  to  limit  compensation  to  specially  enumerated  in- 
dustries declared  to  be  extrahazardous  does  not  make  it  unconstitutional. 
Western  Indemnity  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  454,  170  Cal.  686,  151 
Pac.  398. 

89  Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648. 

The  power  to  classify  is  not  taken  away  by  the  equal  protection  clause  of 
the  Constitution,  and  a  wide  scope  of  legislative  discretion  may  be  exerted  in 
classifying,  without  conflicting  with  the  constitutional  prohibition.  It  is 
only  classifications  made  without  any  reasonable  basis,  and  therefore  purely 
arbitrary,  that  are  condemned.  American  Coal  Co.  v.  Allegany  County  Com'rs, 
128  Md.  564,  98  Atl.  143. 


81  ACTS  IN  GENERAL  §    17 

and  its  determination  is  binding  unless  arbitrary  and  "vvithout  sub- 
stantial basis. ^°     A  classification   is  not  unreasonable  because  it 

so  Mackin  v,  Detroit-Timkin  Axle  Co.,  187  Jlieh.  8,  153  N.  W.  49.  This  pow- 
er of  the  Legislature  is  fully  recognized  in  Withey  v.  Bloem,  163  IMich.  419, 
128  N.  W.  913,  35  L.  R.  A.  (N.  S.)  628;  Sonsmith  v.  Pere  Marquette  R.  Co., 
173  Mich.  78,  138  N.  W.  347.  Classifications  of  this  nature,  some  of  them  iden- 
tical with  that  under  consideration,  have  been  sustained  in  various  states 
where  Workmen's  Compensation  Acts  and  other  laws  affecting  industrial 
workers  were  under  consideration.  Mo.  Pac.  Ry.  Co.  v.  Mackey,  127  U.  S. 
205,  8  Sup.  Ct.  1161,  32  L.  Ed.  107.  Deibeikis  v.  Link-Belt  Co.,  261  111.  454, 
104  N.  E.  211,  Ann.  Cas.  1915A,  241;  Dirken  v.  Great  Nor.  Paper  Co.,  110 
Me.  374,  86  Atl.  320,  Ann.  Cas.  1914D,  396 ;  Opinion  of  Justices,  209  Mass.  607, 
96  N.  E.  308;  Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  571,  35  Sup.  Ct.  167,  59 
L.  Ed.  364.  "It  is  said  that  the  act  violates  the  provisions  relating  to  class 
legislation,  because  it  diverts  the  contributions  exacted  from  the  numerous 
industries  to  the  relief  of  a  particular  class  of  injured  and  disabled  work- 
men, instead  of  applying  it  to  the  use  of  the  state  at  large.  But  to  divert 
the  money  collected  in  this  manner  to  a  special  use  is  one  of  the  prerogatives 
of  legislation.  The  right  of  the  state  to  regulate  any  form  of  industry  arises 
from  the  fact  that  its  pursuit  affects  injuriously  the  health,  safety,  morals, 
or  welfare  of  the  persons  engaged  in  it,  or  is  inimical  in  some  form  to  some 
portion  of  the  individuals  of  the  community.  It  is  not  necessary  that  it  al- 
ways affect  injuriously  the  public  at  large.  On  the  contrary,  it  may  be  regu- 
lated if  it  affects  injuriously  those  engaged  in  it,  or  those  brought  in  direct 
contact  with  it,  even  though  its  pursuit  may  benefit  generally  the  people  of 
the  state  at  large.  Nor  is  there  any  particular  form  which  the  legislation 
must  take.  The  conduct  of  the  business  may  be  prohibited  entirely  in  a  partic- 
ular place  or  in  a  particular  manner ;  its  pursuit  may  be  restricted  to  certain 
hours  of  the  day;  it  may  be  permitted  to  be  conducted  only  in  case  protec- 
tive devises  are  used ;  or  it  may  be  permitted  in  certain  forms,  and  a  sum  of 
money  exacted  from  the  individuals  carrying  it  on  for  the  purpose  of  recom- 
pensing those  who  suffer  losses  because  thereof."  State  v.  Clausen,  65  Wash. 
156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466.  A  legislative  classification  "must 
be  based  upon  some  reason  of  public  policy  growing  out  of  the  condition  or 
business  of  the  class  to  which  the  legislation  is  limited,"  but  the  Legislature 
may  determine  what  differences  or  peculiarities,  of  conditions  or  of  business, 
furnish  a  sufficient  basis  for  applying  a  different  rule  to  those  engaged  in  such 
business,  or  those  affected  by  such  condition,  than  is  applied  to  the  remain- 
der of  the  community,  and  may  draw  the  line  marking  the  boundaiy  between 
one  class  and  another,  and  between  the  several  classes  and  the  general  pub- 
lic. When  such  questions  have  been  determined  by  the  Legislature,  its  judg- 
ment is  binding  on  the  courts,  unless  they  can  point  out  that  the  classification 
adopted  is  purely  fanciful  and  arbitrary,  and  that  no  substantial  or  logical 

HoN.CosrP. — 6 


§  17  workmen's  compensation  82 

excludes  from  the  operation  of  the  Act  domestic  servants,  farm 
laborers,  and  the  like,  casual  employes,  railroads  and  railroad  em- 
ployes engaged  in  interstate  commerce;  ^^    nor  is  a  classification 

basis  exists  therefor.  Mathison  v.  Minneapolis  St.  Ey.  Co.,  126  Minn.  286,  148 
N.  W.  71,  supported  by  Cameron  v.  Chicago,  M.  &  St.  P.  Ry.  Co.,  63  Minn. 
384,  65  N,  W.  652,  31  L.  R.  A.  553 ;  Lommen  v.  Minneapolis  Gaslight  Co.,  65 
Minn.  196,  68  N.  W.  53,  33  L.  E.  A.  437,  60  Am.  St.  Rep.  450 ;  State  v.  Cor- 
bett,  57  Minn.  345,  59  N.  W.  317,  24  L.  R.  A.  498;  Joyce  v.  Great  Northern 
Ry.  Co.,  100  Minn.  225,  110  N.  W.  975,  8  L.  R.  A.  (N.  S.)  756;  State  ex  rel. 
V.  Standard  Oil  Co.,  Ill  Minn.  85, 126  N.  W.  527  ;  State  ex  rel.  Beek  v.  Wagner, 
77  Minn.  483,  80  N.  W.  633,  778,  1134,  46  L.  R.  A.  442,  77  Am.  St.  Rep.  681 ; 
State  ex  rel.  v.  Westfall,  85  Minn.  437,  89  N.  W.  175,  57  Lr.  R.  A.  297,  89 
Am.  St.  Rep.  571 ;  State  ex  rel.  v.  Brown,  97  Minn.  402,  106  N.  W.  477,  5  L. 
R.  A.  (N.  S.)  327;  Hunter  v.  City  of  Tracy,  104  Minn.  378,  116  N.  W.  922; 
Quong  Wing  v.  Kirkendall,  39  Mont.  64,  101  Pac.  250;  Cunningham  v.  North- 
western Improvement  Co.,  44  Mont.  ISO,  119  Pac.  554;  State  v.  Clausen,  63 
Wash.  535,  116  Pac.  7 ;  Id.,  65  Wash.  1.56,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.) 
466.  Legislation  which  applies  to  all  persons  within  the  designated  class, 
but  does  not  apply  to  persons  outside  such  class,  is  well  within  the  con- 
stitutional requirement,  if  there  be  reasonable  grounds  for  making  a  distinc- 
tion between  those  who  fall  within  such  class  and  those  who  do  not.  Mathi- 
son V.  Minneapolis  St.  Ry.  Co.,  126  Minn.  286,  148  N.  W\  71 ;  Mobile,  etc.,  Ry. 
Co.  V.  Turnipseed,  219  U.  S.  35,  31  Sup.  Ct.  136,  55  L.  Ed.  78,  32  L.  R.  A. 
(N.  S.)  226,  Ann.  Cas.  1912A,  463 ;  Mondou  v.  N.  Y.,  N.  H.  &  H.  Ry.  Co.,  223 
U.  S.  1,  32  Sup.  Ct.  169,  56  L.  Ed.  327,  38  L.  R.  A.  (N.  S.)  44;  Merritt  v. 
Knife  Falls  Boom  Co.,  34  Minn.  245,  25  N.  W.  403;  Cameron  v.  Chicago,  M. 
&  St.  P.  Ry.  Co.,  63  Minn.  384,  65  N.  W.  652,  31  L.  R.  A.  553 ;  Nichols  v.  Wal- 
ter, 37  Minn.  264,  33  N.  W.  800;  State  ex  rel.  v.  Justus,  85  Minn.  279,  88 
N.  W.  759,  56  L.  R.  A.  757,  89  Am.  St.  Rep.  550 ;  Pfaender  v.  C.  &  N.  W.  Ry. 
Co.,  86  Minn.  218,  90  N.  W.  393;  State  ex  rel.  v.  Standard  Oil  Co.,  Ill 
Minn.  85,  126  N.  W.  527. 

91  Mathison  v.  Minneapolis  St.  Ry.  Co.,  126  Minn.  286,  148  N.  W.  71;  (Boyn- 
ton  Act,  §§  13,  14)  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac. 
398 ;  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037— the  court  say- 
ing: "As  we  view  it,  substantially  such  differentiations  as  are  here  chal- 
lenged have  been  sustained.  Dirken's  Case,  110  Me.  374,  86  Atl.  320,  Ann. 
Cas.  1914D,  396,  sustains  exclusion  of  those  in  domestic  service  and  those  en- 
gaged in  agriculture  pursuits ;  Deibeikis'  Case,  261  111.  454,  104  N.  E.  211, 
Ann.  Cas.  1915A,  241,  the  excepting  those  engaged  in  casual  work  and  clerical 
and  administrative  employment  in  a  branch  of  hazardous  business,  Borgnis 
V.  Falk,  147  Wis.  327,  133  N.  W.  210,  37  L.  R.  A.  (N.  S.)  489;  Coal  Co.  v. 
111.,  185  U.  S.  203,  22  Sup.  Ct.  616,  46  D.  Ed.  872 ;    Soon  King's  Case,  113  U. 


83  ACTS  IN   GENERAL  §    17 

unreasonable  or  objectionable  as  class  legislation,  or  not  affording 
equal  protection,  because  it  is  based  on  the  nature  of  the  business 
or  the  number  of  employes,^-  or  places  those  who  elect  to  come 
within  the  compensatory  provisions  of  the  Act  in  a  different  class 
than  those  who  do  not  so  elect,^^  or  because  the  Act  is  mandatory 

S.  703,  5  Sup.  Ct  731,  28  L.  Ed.  1145;  Ives  v.  Eailway,  201  N.  Y.  271,  94  N. 
E.  431,  34  L.  R.  A.  (N.  S.)  162,  Ann.  Cas.  1912B,  156 ;  Jacobson's  Case,  197  U. 
S.  11,  25  Sup.  Ct.  358,  49  L.  Ed.  643,  3  Ann.  Cas.  765."  It  may  well  be  said 
in  passing  that  such  differences  as  do  exist  are  sustained  by  tbe  quite  gen- 
erally accepted  doctrine  that  the  freedom  to  contract  is  only  in  theoi-y  enjoy- 
ed by  the  employe  as  fully  as  by  his  employer,  and  that  the  police  power  may 
be  invoked  to  sustain  some  differentiations  in  favor  of  the  employe,  on  the 
theory  that  this  is  a  method  of  protecting  him  for  the  public  good  against  the 
actual  inequality  between  him  and  his  employer."  Hunter  v.  Colfax  Consol. 
Coal  Co.  (Iowa)  154  N.  W.  1037. 

S2  Shade  v.  Ash  Grove  Lime  &  Portland  Cement  Co.,  93  Kan.  257,  144  Pac. 
249.  That  the  Ohio  Act  only  applies  where  the  employer  hires  five  or  more 
workmen  or  operatives  regularly  in  the  same  business  is  not  an  unfair  classifi- 
cation, since  the  risks  of  any  regular  employment  are  less  and  the  opportu- 
nity for  avoiding  them  better  where  there  are  only  five  workmen.  (102  Ohio 
Laws,  p.  524)  State  v.  Creamer,  85  Ohio  St.  349,  97  N.  E.  602,  39  L.  R.  A. 
(N.  S.)  694. 

In  Mezansky  v.  Sissa,  1  Conn.  Comp.  Dec.  430,  it  was  held  that  the  classifi- 
cation of  employers  into  those  employing  more  than  five  employes  and  those 
employing  less  than  five  is  not  an  unreasonable  classification. 

9  3  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037.  The  Legisla- 
ture may  place  employers  who  become  subject  to  part  2  of  the  Act  in  a  dif-r 
ferent  class  than  those  who  do  not,  and  may  also  place  employes  who  become 
subject  thereto  in  a  different  class  from  those  who  do  not.  Abrogating  the 
defenses  of  contributory  negligence,  assumption  of  risk,  and  the  negligence 
of  a  coeraployer,  in  actions  against  employers  who  do  not  accept  such  part 
2,  and  permitting  such  defenses  in  actions  against  employers  who  do  accept 
such  part  2,  does  not  render  the  act  invalid  as  class  legislation.  Part  2 
of  the  act  substitutes  the  rights,  remedies,  and  liabilities  therein  provided  for 
those  previously  existing,  and  employers  and  employes  subject  thereto  are 
limited  to  such  rights  and  remedies ;  but  such  provisions  impair  no  constitu- 
tional rights,  as  they  apply  only  to  those  who  have  voluntarily  chosen  to  be- 
come subject  thereto,  and  such  choice  is  no  less  optional  because  part  2  is 
presumed  to  have  been  accepted  by  all  employers  and  employes  who  have 
not  given  notice  to  the  contrary.  "The  Legislature  is  well  within  its  preroga- 
tive when  it  places  in  one  class  employers  who  become  subject  to  the  pro- 


§  18  workmen's  compensation  84 

as  to  cities  and  other  municipalities  and  elective  as  to  private  cor- 
porations and  persons.^* 

§  18.     Abolition  of  defenses 

The  objection  frequently  made  to  elective  Compensation  Acts 
that,  though  they  give  the  employer  an  option  to  either  accept  or 
reject  the  Act,  they  coerce  him  into  acceptance  by  depriving  him, 
in  case  he  refuses  to  come  under  the  Act,  of  the  defenses  of  neg- 
ligence of  fellow  servant,  assumption  of  risk  and  contributory 
negligence,  has  been  uniformly  unsuccessful,®"^    That  an  Act  gives 

visions  of  part  2  of  the  Act,  and  in  another  class  employers  who  do  not  be- 
come subject  to  such  provisions ;  also  when  it  places  in  one  class  employes 
who  become  subject  thereto.  Employers  who  become  subject  to  part  2  there- 
by tender  to  their  employes,  as  a  consideration  for  exemption  from  common- 
law  liabilities,  rights  and  privileges  which  did  not  previously  exist,  and  offer 
to  assume  the  burden  of  duties  and  obligations  which  were  not  previously 
imposed  upon  them.  Employes  who  become  subject  to  part  2  thereby  tender 
to  their  employers  immunity  from  common-law  actions  as  a  consideration  fi)r 
the  rights  and  remedies  provided  for  by  part  2.  There  propositions  become 
binding  contracts  in  respect  to  all  who  accept  them,  and  remain  as  continu- 
ing offers  to  those  who  have  not  accepted  them.  An  employer  or  employe, 
who,  at  his  option,  may  secure  all  the  advantages  possessed  by  any  other,  is 
hardly  in  a  position  to  claim  that  he  is  discriminated  against.  The  defenses 
of  contributory  negligence,  assumption  of  risk,  and  negligence  of  a  fellow 
servant  were  doubtless  abrogated  in  the  cases  specified,  and  not  abrogated  in 
other  cases,  to  induce  an  acceptance  of  the  provisions  of  part  2  of  the  Act. 
But  notwithstanding  this  purpose,  the  Act  permits  any  employer  to  place  him- 
self in  either  class  of  employers  at  his  election,  and  to  change  from  one  to 
the  other  if  he  so  desires.  Such  legislation  is  not  discriminatory  nor  inhibited 
by  the  Constitution.  Furthermore,  if  its  validity  rested  upon  the  distinction 
between  the  two  classes  of  employers,  and  the  distinction  between  the  two 
classes  of  employes,  we  could  not  say  that  such  distinction  is  so  fanciful  and 
arbitrary,  or  so  wanting  in  substance,  that  the  Legislature  is  prohibited  from 
applying  rules  to  one  class  which  it  does  not  apply  to  the  other.  This  is  in 
harmony  with  the  holding  of  other  courts."  Mathison  v.  Minneapolis  St.  Ey. 
Co.,  126  Minn.  2S6,  148  N.  W.  71. 

94  Marshall  v.  City  of  Detroit,  Mich.  Wk.  Comp.  Cases  (1916)   57. 

9  5  Consumers'  Lignite  Co.  v.  Grant  (Tex.  Civ.  App.)  181  S.  W.  202;  Hunter 
V.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037 ;    Hovis  v.  Cudahy  Refining 


85  ACTS   IN   GENERAL  §    18 

the  employe  of  a  nonaccepting  employer  his  action  at  common  law 
not  subject  to  defenses,  and  the  common-law  action  of  the  nonac- 
cepting employe  is  subject  to  defenses,  does  not  make  it  unreason- 
able or  arbitrary. ^^  Statutory  modifications  of  these  defenses  are 
clearly  within  the  legislative  power.  They  may  be  regulated  or 
abolished. ^^  This  is  in  accordance  with  the  view  of  the  Supreme 
Court  of  the  United  States,  which  has  sustained  the  validity  of  the 

Co.,  95  Kan.  505,  148  Pac.  626.  The  Iowa  Act  is  valid  as  against  this  objec- 
tion. Hawkins  v.  Bleakley  (D.  C.)  220  Fed.  378 ;  Appeal  of  Hotel  Bond  Co.,  89 
Conn.  143,  93  Atl.  245 ;  Sexton  v.  Newark  Dist.  Tel.  Co.,  84  N.  J.  Law,  85,  86 
Atl.  451,  3  N.  C.  C.  A.  569 ;  De  Francesco  v.  Piney  Mining  Co.  (W.  Va.)  86  S.  E. 
777.  Opinion  of  the  Justices,  209  Mass.  607,  96  N.  E.  308 ;  State  v.  Creamer, 
85  Ohio  St.  349,  97  N.  E.  602,  39  L.  R.  A.  (N.  S.)  694 ;  Ives  v.  Company,  201  N. 
Y.  271,  94  N.  E.  431,  34  L.  R.  A.  (N.  S.)  162,  Ann.  Cas.  1912B,  156,  1  N.  C.  C.  A. 
517.  Wood  V.  City  of  Detroit  (Mich.)  155  N.  W.  592,  U  R.  A.  1916C,  388. 
Wheeler  v.  Contoocook  Mills  Corp.,  77  N.  H.  551,  94  Atl.  265.  No  funda- 
mental rights  are  disturbed  by  the  defenses  eliminated  or  modified.  Plunter 
V.  Colfax  Consol.  Co.  (Iowa)  154  N.  W.  1037. 

9  6  Sayles  v.  Foley  (R.  I.)  96  Atl.  340;  Hunter  v.  Colfax  Consol.  Coal  Co. 
(Iowa)  154  N.  W.  1037 ;  De  Francesco  v.  Piney  Mining  Co.  (W.  Va.)  86  S.  E. 
777 ;  Deibeikis  v.  Link-Belt  Co.,  261  111.  454,  104  N.  E.  211,  Ann.  Cas.  1915A, 
241;  Hovis  V.  Cudahy  Refining  Co.,  95  Kan.  505,  148  Pac.  626.  These  de- 
fenses may  be  entirely  abolished,  or  abolished  as  to  certain  classes  of  em- 
ployments only.  Mathison  v.  Minneapolis  St.  Ry.  Co.,  126  Minn.  286,  148 
N.  W.  71 ;  Vindicator,  etc..  Mining  Co.  v.  Firstbrook,  36  Colo.  498,  86  Pac.  313, 
10  Ann.  Cas.  1108 ;  Borgnis  v.  Falk  Co.,  147  Wis.  327,  133  N.  W.  209,  37  L.  R. 
A.  (N.  S.)  489 ;  Deibeikis  v.  Link-Belt  Co.,  261  111.  454,  104  N.  E.  211 ;  In  re 
Opinion  of  Justices,  209  Mass.  607,  96  N.  E.  308;  Ives  v.  South  Buffalo  Ry. 
Co.,  201  N.  Y.  271,  94  N.  E.  431,  34  L.  R.  A.  (N.  S.)  162,  Ann.  Cas.  1912B,  156; 
Sexton  V.  Newark  District  Telegraph  Co.,  84  N.  J.  Law,  85,  86  Atl.  451.  That 
the  Workmen's  Compensation  Act  denies  to  employers  who  do  not  elect  to  pay 
premiums  the  common-law  defenses  of  contributory  negligence,  assumption 
of  risk,  and  negligence  of  fellow  servant  does  not  make  it  unconstitutional. 
Watts  V.  Ohio  Valley  Electric  Ry.  Co.  (W.  Va.)  88  S.  E.  659. 

9  7  Mathison  v.  Minn.  St.  Ry.  Co.,  126  Minn.  286,  148  N.  W.  71,  73;  State  v. 
Creamer,  85  Ohio  St.  349,  97  N.  E.  603,  39  L.  R.  A.  (N.  S.)  694;  Cunningham 
V.  N.  W,  Imp.  Co.,  44  Mont.  180,  119  Pac.  554;  Strom  v.  Postal  Telegraph- 
Cable  Co.,  271  111.  544,  111  N.  E.  555.  That  the  common-law  defenses  became 
recognized  as  law  by  judicial  decisions  did  not  deprive  the  Legislature  of  the 
power  to  abrogate  them.    Hawkins  v.  Bleakley  (D.  C.)  220  Fed.  378. 


§  18  workmen's  compensation  86 

federal  Employers'  Liability  Act,  which,  in  cases  covered  by  it, 
abrogated  the  fellow  servant  rule  and  greatly  restricted  the  op- 
eration of  the  defenses  of  contributory  negligence  and  assumption 
of  risk.®^  The  power  to  abolish  these  defenses  rests  on  the  prin- 
ciple that  no  person  has  any  property  right  or  vested  interest  in  a 
rule  of  the  common  law,  and  that  the  Legislature  may  change  such 
rules  at  pleasure.*''    As  said  in  an  opinion  of  the  Court  of  Appeals 

9  8  Mondou  V.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  223  U.  S.  1,  32  Sup.  Ct.  169,  58 
L.  Ed.  327,  38  L.  R.  A.  (N.  S.)  44.  The  Jeffrey  Case,  23.5  U.  S.  571.  35  Sup.  Ct. 
169,  59  L.  Ed.  364,  is  authority  for  the  proposition  that  abolishing  such  de- 
fenses as  contributory  negligence,  assumed  risk,  and  the  negligence  of  fel- 
low servants,  only  where  the  employer,  being  free  to  accept  or  reject,  rejects, 
violates  no  constitutional  rights.  The  statement  of  Mr.  Justice  Van  Devan- 
ter  relative  to  the  right  to  abolish  common-law  defenses,  though  made  in  a 
case  involving  the  Employers'  Liability  Act  and  with  reference  to  that  act,  ap- 
plies in  principle  to  a  Compensation  Act.  He  says:  "Of  the  objections  to 
these  changes,  it  is  enough  to  observe:  First.  A  person  has  no  property,  no 
vested  interest,  in  any  rule  of  the  common  law.  That  is  only  one  of  the  forms 
of  municipal  law,  and  is  no  more  sacred  than  any  other.  Rights  of  property 
which  have  been  created  by  the  common  law  cannot  be  taken  away  with- 
out due  process ;  but  the  law  itself,  as  a  rule  of  conduct,  may  be  changed  at 
the  will  *  *  *  ot  the  Legislature,  unless  prevented  by  constitutional  lim- 
itations. Indeed,  the  great  office  of  the  statutes  is  to  remedy  defects  in  the 
common  law  as  they  are  developed  and  to  adapt  it  to  the  changes  of  time  and 
circumstances.  Second.  The  natural  tendency  of  the  changes  described  is  to 
impel  the  carriers  to  avoid  or  prevent  the  negligent  acts  and  omissions  which 
are  made  the  basis  of  the  rights  of  recovery  which  the  statute  creates  and 
defines ;  and,  as  whatever  makes  for  that  end  tends  to  promote  the  safety  of 
the  employes  and  to  advance  the  commerce  in  which  they  are  engaged,  we  en- 
tertain no  doubt  but  that  in  making  these  changes  Congress  acted  within  the 
limits  of  the  discretion  confided  to  it  by  the  constitution."  Sexton  v.  Newark 
District  Telegraph  Co.,  84  N.  J.  Law,  85,  86  Atl.  451,  3  N.  C.  C.  A.  569. 

99  Mathison  v.  Minneapolis  St.  lly.  Co.,  126  Minn.  286,  148  N.  W.  71;  Munn 
v.  Illinois,  94  U.  S.  113,  24  L.  Ed.  77;  Mondou  v.  New  York,  N.  H.  &  H.  Ry. 
Co.,  223  U.  S.  1,  32  Sup.  Ct.  169,  56  L.  Ed.  327,  38  L.  R.  A.  (N.  S.)  44 ;  Borg- 
nis  V.  Falk  Co.,  147  Wis.  327,  133  N.  W.  209,  37  L.  R.  A.  (N.  S.)  489 ;  Hunter 
V.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037;  State  v.  Creamer,  85  Ohio 
St.  349,  97  N.  E.  602,  39  L.  R.  A.  (N.  S.)  694.  The  employer  has  no  vested 
right  in  the  common-law  defenses,  and  hence  the  Legislature  could  take  them 
away  even  without  giving  any  election.  Greene  v.  Caldwell,  170  Ky.  571,  183 
S.  W.  648.    An  employer  has  no  vested  right  to  the  common-law  defenses  of 


87  ACTS   IN   GENERAL  §    19 

of  New  York,  written  by  Miller,  J.:  "No  one  has  a  vested  right 
under  the  Constitution  to  the  maintenance  of  that  common-law 
doctrine,  which  undoubtedly  may  be  extended  or  curtailed  by  the 
Legislature.  No  one  doubts  that  the  doctrine  of  assumption  of 
risk  and  the  fellow  servant  doctrine,  also  developed  by  the  courts 
under  different  conditions  than  those  now  prevailing,  may  be  lim- 
ited or  entirely  abrogated  by  the  Legislature.  Acts  having  that 
effect  have  been  sustained  by  repeated  decisions  of  this  court.  The 
power  to  limit  or  take  away  must  also  involve  the  power  to  ex- 
tend. At  the  common  law  the  servant  was  held  to  assume  by  im- 
plied contract  the  ordinary  risks  of  the  employment,  including  the 
risk  of  a  fellow  servant's  negligence,  and  even  of  negligence  im- 
putable to  the  master  if  the  danger  was  obvious,  or  with  knowl- 
edge of  it  the  servant  voluntarily  continued  in  the  employment. 
It  would  not  be  a  great  extension  of  that  doctrine  for  the  Legis- 
lature to  provide  that  the  employe  should  assume  the  risk  of  all 
accidental  injuries,  and,  if  that  can  be  done,  it  is  certainly  com- 
petent for  the  Legislature  to  provide  by  the  creation  of  an  insur- 
ance fund  for  a  limited  compensation  to  the  employe  for  all  acci- 
dental injuries,  regardless  of  whether  there  was  a  cause  of  action 
for  them  at  common  law."  ^ 

§  19.     Right  to  question  validity 

Since  the  Legislature  has  power  to  take  away  in  their  entirety  the 
defenses  of  contributory  negligence,  assumption  of  risk,  and  the 
fellow  servant  rule,  the  employer  cannot  complain  of  supposed 
defects  in 'the  processes  by  which  these  defenses  may  be  regained. 
Until  he  shows  some  desire  to  avail  himself  of  these  processes,  he 

assumed  risk  and  contributory  negligence,  and  hence  the  Compensation  Act  is 
not  unconstitutional  as  taking  away  vested  rights.  Middleton  v.  Texas  Power 
&  Light  Co.  (Tex.)  185  S.  W.  556. 

1  Jensen  v.  Southern  Pac.  Co.,  215  N.  Y.  514,  109  N.  E.  600,  L.  R.  A.  1916A, 
403,  Ann.  Cas.  1916B,  276. 


§19  workmen's  compensation  88 

cannot  be  heard  to  complain  that  they  are  unequal.'  Nor  can  he 
be  heard  to  urge  a  grievance  of  the  employe,^  or  attack  the  law 
on  the  ground  that  it  is  unconstitutional  as  to  servants,  unless  it 
appear  that  such  unconstitutionality  will  affect  his  liability  or  ex- 
emption from  liability.*  Neither  can  an  employe  question  the  valid- 
ity of  an  Act  where  he  has  elected  to  come  under  it.^  A  statute 
will  not  be  declared  unconstitutional  on  a  point  not  involved  in 
the  litigation."  Therefore  the  question  whether  an  Act  is  uncon- 
stitutional as  depriving  a  workman's  parents  of  their  right  of  ac- 
tion for  loss  of  his  services  while  he  is  a  minor  will  not  be  deter- 
mined where  the  injured  employe  was  not  a  minor  at  the  time  of 
his  injury. '^  Likewise,  where  an  employer  has  not  accepted  the 
Act  and  has  been  given  a  jury  trial,  he  cannot  attack  the  Act  on  the 
ground  that  it  is  unconstitutional  as  denying  a  jury  trial  on  the  is- 
sue of  damages  to  employers  who  have  accepted  it.^  The  Michigan 
Act  concerns  only  the  workman's  own  right  of  action,  and  does  not 

2  Wheeler  v.  Contoocook  Mills  Corporation,  77  N.  H.  551,  94  Atl.  265. 

3  Pluuter  V.  Colfax  Cousol.  Coal  Co.  (Iowa)  154  N.  W.  1037 ;  Jeffrey  v.  Blagg, 
235  U.  S.  571,  35  Sup.  Ct.  109,  59  L.  Ed.  364. 

4  Jensen  v.  Southern  Pac.  Co.,  215  N.  Y.  514,  109  N.  E.  600,  L.  R.  A.  1910A, 
403,  Ann.  Cas.  1916B,  276.  An  allegation  that  the  provision  of  paragraph  9 
that  "in  the  employment  of  minors  section  2  shall  be  presumed  to  apply  un- 
less the  notice  be  given  by  or  to  the  parent  or  guardian  of  the  minor"  is 
void  will  not  be  considered  by  the  Supreme  Court  when  it  appears  that  dece- 
dent was  34  years  old  at  the  time  of  his  death.  Sexton  v.  Newark  District 
Telegraph  Co.,  84  N.  J.  Law,  85,  86  Atl.  451. 

5  Sayles  v.  Foley  (R.  I.)  96  Atl.  340. 

6  In  Sexton  v.  Newark  District  Telegraph  Company,  84  N.  J.  Law,  85,  86 
Atl.  451,  3  N.  C.  C.  A.  569,  the  court  says:  "The  question  cannot  be  broader 
than  that  raised  by  the  facts.  That  the  Act  or  the  supplement  may  or  may  not 
deprive  parties  to  supposititious  cases  of  constitutional  rights  has  no  bearing 
upon  the  present  case,  if  it  appears  that  the  parties  before  the  court  are  not 
deiirived  of  constitutional  rights  by  the  proceedings  under  review." 

7  Mackin  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49, 

8  (Laws  1911,  c.  163)  Wheeler  v.  Contoocook  Mills  Corp.,  77  N.  H.  551,  94 
Atl.  2G5. 


89  ACTS  IN  GENERAL  §    19 

affect  the  right  of  action  of  his  parents  for  loss  of  his  services  and 
therefore  cannot  be  said  to  be  unconstitutional  as  depriving  a 
parent  of  his  right  of  action  for  injury  to  a  minor  child.^  It  has 
been  held  that  the  constitutionality  of  the  Industrial  Insurance  Act 
of  Washington  could  be  raised  by  a  proceeding  in  mandamus  to 
compel  the  state  treasurer  to  issue  a  warrant  to  pay  an  obligation 
of  the  Industrial  Insurance  Department.^"  Waiver  of  the  right  to 
question  the  constitutionality  of  an  Act  by  electing  to  come  within 
its  terms  is  considered  in  a  subsequent  section.^^ 

»  Mackin  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49. 

10  State  V.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466. 

11  See  §  21,  post. 


§  20  workmen's  compensation  90 


CHAPTER  II 

ELECTIVE  AND  COMPULSORY  COMPENSATION 

Section 

20.  What  Acts  are  elective  and  what  compulsory. 

21.  Validity  of  Acts  as  affected  by  their  elective  or  compulsory  nature. 

22.  Contractual  nature  of  elective  compensation. 

23.  Presumption,  notice  and  effect  of  election. 

24.  Pleading,  and  proof  of  election. 

25.  Abolition  of  defenses  in  common-law  actions. 

§  20.     What  Acts  are  elective  and  v/hat  compulsory 

Of  thirty-four  Acts  adopted  in  the  American  states  and  terri- 
tories, fifteen  are  elective  as  to  all  classes  of  employers  within  their 
terms, ^  ten  are  elective  as  to  private  employers  but  compulsory 
as  to  public  employers,^  and  nine  may  be  classed  as  compulsory.^ 

1  Elective  Acts  have  been  adopted  in  Alaska,  Colorado,  Connecticut,  Illi- 
nois, Kansas,  Kentucky,  Massachusetts,  Miuuesota,  Nebraska,  New  Hamp- 
shire, Oregon,  Rhode  Island,  Texas,  Vermont,  and  West  Virginia. 

The  operation  of  the  system  of  compensation  provided  rests  upon  the  free 
consent  of  employer  and  employe,  given  in  the  manner  provided  by  the  Act. 
Without  such  consent  on  his  part,  the  employe  retains  all  his  rights  and  rem- 
edies under  common  and  statutory  law.  Shade  v.  Ash  Grove  Lime  &  Port- 
land Cement  Co.,  93  Kan.  257,  144  Pac.  249. 

The  Act  of  1911  was  elective.  Price  v.  Clover  Leaf  Coal  Min.  Co.  (1914) 
188  111.  App.  27. 

2  Acts  of  this  class  have  been  adopted  in  Indiana,  Iowa,  Louisiana,  Maine, 
Michigan,  Montana,  Nevada,  New  Jersey,  Pennsylvania,  and  Wisconsin. 

The  Iowa  Act  is  optional.  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p. 
3.  As  is  also  the  New  Jersey  Act  (P.  L.  N.  J.  1911,  p.  134).  Albanese  v. 
Stewart,  78  Misc.  Rep.  581,  138  N.  Y.  Supp.  942. 

The  employe  is  not  compelled  to  give  up  any  common-law  or  constitutional 
right,  but  reasonable  provisions  are  made  for  the  exercise  of  his  election. 
Young  V.  Duncan,  218  Mass.  346,  106  N.  E.  1. 

3  Compulsory  Acts  have  been  adopted  in  Arizona,  California,  Hawaii,  Mary- 
land, New  York,  Ohio,  Oklahoma,  Washington,  and  Wyoming.  The  Arizona 
Act  is  compulsory  on  the  part  of  the  employer  and  optional  on  the  part  of 


91  ELECTIVE  AND  COMPULSORY  COMPENSATION         §  20 

In  this  connection,  it  should  be  noted  that  the  California  Act,  class- 
ed as  compulsory,^  is  elective  as  to  farm  laborers,  domestic  serv- 
ants, and  casual  employes,  but  otherwise  is  compulsory.^  Some 
Acts,  such  as  the  present  New  York  Act,  are  elective  only  with 
the  employer,''  while  others  are  elective  as  to  both  employer  and 

the  employe.  Beliringer  v.  Inspiration  Consol.  Copper  Co.,  17  Ariz.  232,  149 
Pac.  10(35;  Consolidated  Arizona  Smelting  Co.  v.  Ujack,  15  Ariz.  382,  139 
Pac.  465,  5  N.  C.  C.  A.  742.  In  a  recent  Arizona  case  tlie  court  said :  "Tiie 
cases  decided  under  the  New  Jersey  Compensation  Law,  cited  by  appellant 
do  not  aid  us  in  the  consideration  of  the  question  before  us.  The  New  Jer- 
sey Act  is  not  compulsory  either  on  employer  or  employe,  but  is  elective  or 
optional  as  to  both.  Our  Constitution  and  Compensation  Act  make  the  com- 
pensation provided  compulsory  upon  the  part  of  the  employer,  and  optional 
on  the  part  of  the  employe.  Just  a  line  or  two  from  two  New  York  cases  will 
sufficiently  distinguish  the  New  Jersey  law  from  ours.  In  Albanese  v. 
Stewart,  the  court  said:  'However,  the  New  Jersey  Act  is  not  a  compulsory 
statute.  It  is  a  so-called  optional  or  elective  statute.'  In  Pensabene  v.  F.  & 
J.  Auditore  Co.  it  was  said :  'The  option  to  accept  one  or  the  other  forms  of 
remedy  is  equally  open  to  both  parties  at  the  time  of  their  contracting,  and 
before  any  rights  have  accrued  by  accident'  The  New  Jersey  Supreme  Court, 
iu  Sexton  v.  Newark  Dist.  Tel.  Co.  said:  'Under  the  Act  neither  the  em- 
ployer nor  the  employe  is  bound  to  accept  tlie  provisions  of  section  2,  unless 
he  chooses  to  do  so.'  It  can  be  readily  seen  that  the  New  Jersey  Compensa- 
tion Act  is  so  widely  different  from  ours  as  to  make  a  judicial  construction 
of  it  valueless  when  applied  to  our  law.  There  is  no  option  to  election  left 
to  the  employer  under  our  Constitution  and  laws;  for,  as  to  him,  they  are 
compulsory."  Consolidated  Arizona  Smelting  Co.  v.  Ujack,  15  Ariz.  382,  139 
Pac.  465,  quoting  from  Albanese  v.  Stewart,  78  Misc.  Rep.  581,  138  N.  Y. 
Supp.  942;  Pensabene  v.  F.  &  J.  Auditore  Co.,  78  Misc.  Rep.  538,  138  N.  Y. 
Supp.  947;  Sexton  v.  Newark  Dist.  Tel.  Co.,  84  N.  J.  Law,  85,  86  Atl.  451, 
455. 

4  Many  Acts,  like  the  Eoseberry  Act  of  California  (St.  1911,  p.  796),  which 
in  1913  was  superseded  by  the  Boynton  Act,  are  made  applicable  only  to 
employers  and  employes  electing  to  be  bound  by  them.  Others  provide  a 
compulsory  system  of  taxation,  as  does  the  Boynton  Act.  Western  Indem- 
nity Co.  V.  Pillsbury,  170  Cal.  686,  151  Pac.  398. 

5  St.  Cal.  1913,  p.  279,  known  as  the  Boynton  Act,  superseded  the  Roseberry 
Act,  St.  1911,  p.  796.  The  most  striking  difference  between  the  two  laws  is 
that  the  compensation  provisions  of  the  later  statute  are  compulsory  on  all 
employers  and  employes  coming  within  its  terms,  while  the  Roseberry  Act 
gave  to  both  employers  and  employes  a  right  of  election  in  this  regard.     Id. 

6  Herkey  v.  Agar  Mfg.  Co.,  90  Misc.  Rep.  457,  153  N.  Y.  Supp.  369. 


§  21  workmen's  compensation  92 

employe/  The  present  Act  of  Ohio  is  compulsory  as  to  all  em- 
ployers employing  five  or  more  workmen,  and  optional  as  to  those 
employing  less.^  The  New  Jersey  Act,  being  elective  and  becom- 
ing compulsory  only  when  neither  party  disaffirms  it,^  is  not  con- 
trary to  the  public  policy  of  New  York/"  but  is  enforceable  in  that 
state.^^ 

§  21.     Validity  of  Acts  as  affected  by  their  elective  or  compulsory 
nature 

Some  of  the  Acts  were  made  elective  to  avoid  constitutional  ob- 
jections/^ and  to  meet  the  view  of  those  holding  that  the  ques- 
tion whether  the  employer  and  employe  are  left  free  to  either  ac- 
cept or  reject  an  Act  is  determinative  of  its  constitutionality.    Con- 

7  It  has  been  held  that  the  Acts  of  Connecticut  (Appeal  of  Hotel  Bond  Co., 
89  Conn.  143,  93  Atl.  245),  Illinois  (Eldorado  Coal  &  Mining  Co.  v.  Mariotti, 
215  Fed.  51 ;  Deibeikis  v.  Link-Belt  Co.,  261  111.  454,  104  N.  E.  211,  Ann.  Cas. 
1915A,  241),  Iowa  (Hawkins  v.  Bleakley  [D.  C]  220  Fed.  378 ;  Op.  Sp.  Coun- 
sel to  Iowa  Indus.  Com.  [1915]  p.  5),  Michigan  (Mackin  v.  Detroit  Timkin 
Axle  Co.,  187  Mich.  8,  153  N.  W.  49),  and  New  Jersey  (Rounsaville  v.  Cen- 
tral R.  Co.,  87  N.  J.  Law,  371,  94  Atl.  392 ;  Sexton  v,  Newark  District  Tele- 
graph Co.,  84  N.  J.  Law,  85,  86  Atl.  451 ;  Scott  v.  Payne  Bros.,  85  N.  J.  Law, 
446,  89  Atl.  927)  are  elective  as  to  both  employer  and  employ^. 

8  The  original  Ohio  Act  was  optional  or  elective  in  principle.  On  Septem- 
ber 3,  1912,  a  constitutional  amendment  was  adopted  by  the  people  of  Ohio 
(section  35,  art.  2)  authorizing  the  passage  of  laws  providing  for  a  state 
fund  to  be  created  by  compulsory  contribution  thereto  by  employers  and  ad- 
ministered by  the  state.  Pursuant  to  this  authority  the  Legislature  passed 
the  present  Act  (103  Ohio  Laws,  p.  72).  This  act  is  in  effect  an  amendment 
to  the  act  of  1911  (102  Ohio  Laws,  p.  524) ;  the  principal  changes  being  that 
it  is  compulsory  as  to  all  employers  employing  five  or  more  workmen  and 
optional  as  to  those  employing  less.  State  v.  Industrial  Commission,  92 
Ohio  St.  434,  111  N.  E.  299. 

9  (P.  L.  N.  J.  1911,  p.  134)  Albanese  v.  Stewart,  78  Misc.  Rep.  581,  138  N. 
Y.  Supp.  942. 

10  Wasilewski  v.  Warner  Sugar  Refining  Co.,  87  Misc.  Rep.  156,  149  N.  T. 
Supp.  1035;  Albanese  v.  Stewart,  78  Misc.  Rep.  581,  138  N.  Y.  Supp.  942. 

11  Pensabene  v.  F.  &  J.  Auditore  Co.,  78  Misc.  Rep.  538,  138  N.  Y.  Supp.  947. 

12  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245. 


93  ELECTIVE   AND   COMPULSORY  COMPENSATION  §    21 

sideration  of  this  view,  in  respect  to  which  the  courts  are  by  no 
means  unanimous/^  gives  rise  to  the  further  question  whether  an 
apparent  election  is  free  or  coerced.  If  an  Act  is  not  susceptible 
of  being-  accepted  freely,  elective  provisions  will  not  validate  it. 
One  may  waive  a  constitutional  right,  but  cannot  be  compelled  to 
do  so  and  be  arbitrarily  subjected  to  an  option  to  stand  upon  one 
right  under  penalty  of  losing  another.^*  It  would  not  save  an  Act 
that  every  provision  was  in  itself  valid,  and  though  it  plainly  said 
that  all  were  free  to  reject  it,  if  an  extreme  penalty  were  to  be 
inflicted  upon  rejection.  The  test  is  whether  the  Act  in  truth  re- 
sorts to  undue  compulsion  to  induce  acceptance. ^^ 

That  the  person  seeking  work  is  at  a  disadvantage,  since,  unless 
he  accept  the  compensation  provisions  of  the  statute,  he  may  have 
small  chance  of  securing  employment,  makes  his  decision  to  accept 
such  provisions  none  the  less  the  exercise  of  an  option. ^^  Nor  does 
it  amount  to  coercion  that  an  employer's  failure  to  elect  to  come 
under  an  Act  will  result  in  eliminating  certain  defenses  and  in 
changing  certain  rules  of  procedure.^^  As  said  by  Miller,  J.,  in 
Hunter  v.  Colfax  Consol.  Coal  Co.:  "It  comes  to  this:  Can  a 
law  be  void  for  coercion  which  attaches  no  penalty  to  rejection  of 
its  provisions  other  than  taking  away,  in  whole  or  in  part,  that 
which  the  citizen  may  lawfully  be  deprived  of  without  reference 
to  any  statute  which  might  be  either  accepted  or  rejected?  If  the 
Legislature  may  validly  say :  You  shall  not  defend  with  contrib- 
utory negligence,  nor  with  fault  of  fellow  servants;  you  must 
prove  you  are  not  in  fault  for  the  injury  suffered  by  your  servant 

13  The  fact  that  an  Act  is  compulsory  does  not  necessarily  make  it  uncon- 
stitutional, particularly  where  the  scheme  of  the  Act  is  merely  a  compulsory 
scheme  of  insurance.  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W. 
1037. 

14  Byer's  Case,  84  Ohio  St.  408,  95  N.  E.  917,  38  L.  R.  A.  (N.  S.)  913;  Hun- 
ter V.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037. 

15  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037. 

16  Nitram  Co.  v.  Creagh,  84  N.  J.  Law,  243,  86  Atl.  435. 

17  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037. 


§  21  workmen's  compensation  94 

while  doing-  your  work;  you  must  effect  insurance  so  that  your 
insolvency  may  not  leave  him  a  crippled  public  charge,  or  make 
a  public  burden  of  his  dependents ;  you  miay  contract  with  each 
othe.  to  arbitrate  summarily,  effectively,  and  cheaply,  and  the 
award  shall  be  not  more  than  a  stated  sum,  and  you  shall  not  con- 
tract for  less  payment — can  validly  compel  all  this  without  enact- 
ing a  Workmen's  Compensation  Act — then  how  can  the  saying 
that  these  things  you  shall  lose  and  these  things  you  shall  do  un- 
less you  ax.cept  the  Act  be  undue  compulsion?  One  who  is  at  lib- 
erty to  do  or  not  to  do  a  thing  can  always  say :  'I  will  not  do 
what  I  can  refuse  to  do,  with  or  without  reason,  unless  you  do 
what  I  demand.'  There  can  be  no  coercion  in  the  sight  of  the 
law  effectuated  by  doing  or  not  doing  what  one  has  the  absolute 
right  to  do  or  not  to  do,  no  matter  what  terms  are  attached  to 
doing  or  refraining.  One  who  has  absolute  right  to  do  or  not  to 
do  a  thing  can  attach  to  his  doing  or  not  doing  any  condition,  no 
matter  how  unreasonable  or  arbitrary.  The  remedy  is  refusal  to 
accede  to  the  unreasonable  demand."  ^®  An  employer's  election 
to  come  under  the  Act  is  not  coerced  because  of  a  provision  that 
such  election  will  be  presumed  if  he  fails  to  give  certain  notices. ^^ 
Since  the  right  to  trial  by  jury  may  be  w^aived,  an  objection  based 
on  deprivation  of  such  right  cannot  successfully  be  made  by  one 
who  has  voluntarily  accepted  the  provisions  of  a  Workmen's  Com- 
pensation or  Insurance  Act.^°    The  same  is  true  of  other  constitu- 

18  Id.  10  Id. 

20  In  Evanhoff  v.  State  Industrial  Accident  Commission,  78  Or.  503,  154 
Pac.  106,  the  court  (opinion  by  McBride,  J.)  says:  "Plaintiff's  argument  pro- 
ceeds upon  the  theory  that  the  Act  establishing  the  Industrial  Accident  Com- 
mission attempts  to  establish  a  court  for  the  trial  of  causes  without  a  jury, 
which  it  does  not,  and  to  compel  workmen  and  employers  to  adjust  their 
grievances  without  their  consent,  which  is  contrary  to  the  whole  spirit  and 
intent  of  the  act.  As  before  noted,  the  Act  leaves  the  employer  free  to  ac- 
cept the  provisions  of  the  Act  or  to  reject  them  as  he  may  see  fit.  If  he 
gives  notice  that  he  rejects  them,  he  is  left  to  protect  himself  from  actions 
for  personal  injury  by  litigation  in  the  courts.  It  is  true  that  the  Act  has 
swept  away  certain  defenses  heretofore  available;   but,  as  this  could  have 


95  ELECTIVE  AND  COMPULSORY  COMPENSATION         §  21 

tional  objections  to  an  Act,^^  such  as  that  it  takes  away  the  right 
to  contract/^   improperly   delegates  judicial   power  to  arbitrators 

been  done  in  any  case,  he  has  no  legal  reason  to  complain.  If  he  sees  fit  not 
to  avail  himself  of  the  provisions  of  the  Act,  he  may  still  protect  himself  by 
giving  notice  that  he  rejects  its  provisions.  It  is  not  compulsory,  and  the 
arguments  that  apply  with  greater  or  less  force  to  compulsory  Acts  are  here 
inapplicable.  The  state  says  to  the  employer  and  employ^  alike :  'We  pre- 
sent to  you  a  plan  of  accident  insurance  which  you  may  accept  or  reject  at 
your  own  pleasure.  If  you  accept,  you  must  be  bound  by  its  terms  and  limi- 
tations; if  you  reject  it,  the  courts  are  open  to  you  with  every  constitutional 
remedy  intact.  Take  your  choice  between  our  plan  and  such  remedies  as 
the  statute  gives  you.'  Discussing  certain  features  of  the  Iowa  Compensa- 
tion Act,  limiting  the  amount  to  be  allowed  for  certain  injuries,  Mr.  Justice 
McPherson,  in  the  case  of  Hawkins  v.  Bleakley  (D.  0.)  220  Fed.  378,  381, 
says:  'The  first  twenty-two  sections  of  this  lengthy  statute  fix  the  liability 
of  the  employer  and  the  rights  of  the  employe.  A  scale  of  compensation  is 
fixed  and  made  certain.  Each  party  can  come  within  the  statute  or  remain 
outside  of  the  statute.  Each  party  has  his  election.  Many  of  the  states  for 
many  years  have  had  statutes  fixing  the  liability  with  precision  in  cases  of 
death,  and  in  no  instance  has  any  court  held  such  statute  invalid.  And  why 
a  statute  cannot  fix  with  certainty  the  damages  to  be  allowed  in  case  of  the 
loss  of  an  arm,  leg,  eye,  or  other  injury  is  not  perceived.' "  In  Hunter  v.  Col- 
fax Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037,  the  court  says:  "Passing  ab- 
stractions and  general  discussion,  and  coming  to  the  question  whether  the 
Act  is  invalid  because  it  denies  the  right  to  trial  by  jury  in  proceedings  to 
administer  the  Act  between  those  who  have  accepted  it,  we  find  it  universally 
held  that  in  such  case  it  is  not  a  valid  objection  that  the  jury  trial  is  not 
provided  for.  Sexton  v.  Telegraph  Co.,  84  N.  J.  Law,  85,  86  Atl.  452;  State 
V.  Clausen  (Wash.),  supra;  Jensen's  Case,  215  N.  Y.  514,  109  N.  E.  603,  604, 
L.  R.  A.  1916A,  403,  Ann.  Cas.  1916B,  276 ;  Deibeikis'  Case  (111.),  supra ;  Lum- 
ber Co.  V.  Commission,  154  Wis,  114,  142  N.  W.  187,  L.  R.  A.  1916A,  374,  Ann. 
Cas.  1915B,  997 ;  In  re  State  Journal  Co.,  161  Ky.  562,  170  S.  W.  437,  1166, 
L.  R.  A.  1916A,  389,  Ann.  Cas.  1916B,  1273.  The  right  to  jury  trial  can  be 
waived.  Our  own  statute  (section  3650)  provides  in  terms  that  the  right  ex- 
ists only  if  it  be  not  waived.  It  may  be  conceded  the  cases  hold  that  the 
waiver  of  trial  by  jury  and  by  due  process  of  law  must  be  by  voluntary  as- 
sent, but  it  does  not  follow  that  constitutional  guaranties  must  be  'ex- 
pressly' waived  by  the  party  thereby  affected.  Proceeding  upon  this  prem- 
ise, the  authorities  hold  that,  whenever  two  agree  to  have  their  difficulties 
adjusted  by  a  method  which  excludes  trial  by  jury,  they  thereby  waive  the 
right  to  such  trial ;  that  the  right  to  such  trial  is  waived  by  electing  to  come 

21  See  note  21  on  following  page. 

2  2  Hunter  v,  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037. 


§  21  workmen's  compensation  96 

or  other  boards,^^  and  takes  away  the  right  to  have  liability  deter- 
mined in  the  courts/*  creates  a  conclusive  presumption,^^  limits 

within  the  act;  that  such  acts  take  away  the  cause  of  action  on  the  one 
hand  and  the  ground  of  defense  on  the  other,  and  merge  both  in  a  statutory 
indemnity,  fixed  and  certain;  that  for  these  benefits  the  parties  are  required 
to  give  up  'the  doubtful  privilege  of  having  a  jury  assess  his  damages,  a  con- 
siderable part  of  which,  if  recovered  at  all,  after  long  delay,  must  go  to 
pay  expenses  and  lawyer  fees.'  In  the  case  of  The  Timber  Co.,  75  Wash. 
581,  135  Pac.  645,  1166,  it  is  held  that  the  right  to  regulate  the  management 
of  industries  is  so  within  the  police  power  as  that  Workmen's  Compensation 
Acts  are  valid,  though  thereby  the  injured  employe  is  deprived  of  a  jury 
trial." 

2iMathison  v.  Minneapolis  St.  Ry.  Co.,  126  Minn.  286,  148  N.  W.  71. 

In  Jeffrey  v.  Blagg,  235  U.  S.  571,  35  Sup.  Ct.  169,  59  L.  Ed.  364,  dealing 
with  the  validity  of  the  Ohio  Compensation  Act,  which,  among  other  things, 
was  attacked  for  arbitrarily  eliminating  defenses  like  contributory  negligence, 
assumed  risk,  and  the  negligence  of  fellow  servants,  from  larger  shops,  while 
leaving  them  to  smaller  ones,  the  court  said :  "No  employer  is  obliged  to  go 
into  this  plan.    He  may  stay  out  of  it  altogether  if  he  will." 

The  Supreme  Court  of  Ohio  has  upheld  the  Ohio  Act  on  the  ground  that 
it  is  purely  optional  and  voluntary,  both  as  to  employes  and  employer,  in  so 
far  as  it  deals  with  the  requirement  that  if  the  parties  concerned  elect  to 
accept  the  Act  they   shall  make   certain   payments  to   effectuate   insurance 

2  3Mellen  v.  Industrial  Commissioners,  154  Wis.  114,  142  N.  W.  189,  L.  R. 
A.  1916A,  374,  Ann.  Cas.  1915B,  997 ;  (Workmen's  Compensation  Act,  §§  25-35) 
Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037. 

It  cannot  be  said  that  by  this  act  judicial  power  is  delegated  to  boards  of 
arbitrators,  contrary  to  the  Constitution.  Parties  to  a  contract  may  make 
valid  and  binding  agreements  to  submit  questions  in  dispute  or  any  dis- 
agreement that  may  arise  to  a  board  of  arbitrators  composed  of  persons  or 
tribunals  other  than  the  regularly  organized  courts,  and  such  agreements 
will  be  enforced.  Deibeikis  v.  Link-Belt  Co.,  261  111.  454,  104  N.  E.  211,  Ann. 
Cas.  1915A,  241. 

24  Employers  who  become  subscribers  under  the  Act  voluntarily  waive  the 
right  to  have  their  liabilities  determined  in  the  courts.  As  to  employers  who 
remain  without  the  Act,  negligence  for  which  they  are  responsible  must  be 
established  to  render  them  liable.  This  is  not  the  creation  of  an  absolute 
liability  against  them,  since  they  may  defend  the  suit  by  disproving  any 
negligence.  The  substantial  defense  in  such  action  is  therefore  not  taken 
away.  The  Act  accordingly  deprives  neither  class  of  employers  of  any  fun- 
damental right.    Middleton  v.  Texas  Power  &  Light  Co.  (Tex.)  185  S.  W.  556. 

2  5  See  note  25  on  following  page. 


97  ELECTIVE   AND   COMPULSORY   COMPENSATION  §    21 

the  amount  of  recovery,^®  and  violates  the  constitutional  provisions 
guaranteeing  due  process  of  law  ^''  and  equal  protection  and  pro- 

against  the  results  of  accidents  in  the  employment.  Substantially  this  is  af- 
firmed in  Re  Opinion  of  Justices,  209  Mass.  607,  96  N.  E.  309,  as  to  a  statute 
substantially  like  the  Iowa  Act  held  constitutional  in  Hunter  v.  Colfax 
Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037.  It  is  said  in  the  Massachusetts  case 
that,  so  long  as  it  is  elective,  an  Act  requiring  an  employer  to  become  a  sub- 
scriber, and  the  employ^  to  waive  right  to  sue  at  common  law,  and  accept 
compensation  provided  in  the  Act,  violates  no  constitutional  requirement. 
"It  is  a  general  principle  that  a  person  may,  at  any  time,  waive  his  right 
to  bring  an  action  upon  a  money  demand  unless  there  is  a  constitutional  or 
statutory  provision  prohibiting  it,  or  it  is  clearly  against  public  policy  to 
permit  him  to  do  so.  *  *  *  This  view  of  the  Act  disposes  of  many  of  the 
constitutional  questions  raised  by  counsel.  The  state  proposes  to  employers 
and  employes  an  accident  and  life  insurance  scheme,  and  offers  it  to  them 
in  lieu  of  litigation.  It  does  not  compel  them  to  become  participants  in  it 
or  to  contribute  to  it,  but  if  they  voluntarily  choose  to  do  so,  they  waive  any 
other  remedy,  because  the  statute  provides  as  a  part  of  the  scheme  that  they 
must  do  so ;  and,  as  before  observed,  by  permission  of  the  statute  a  party 
may  waive  or  limit  the  quantum  of  his  compensation  for  any  possible  pro- 
spective injury.  The  noncompulsory  feature  of  the  act  may  be  said  to  elimi- 
nate most  of  the  objections  urged  upon  constitutional  grounds."  Evanhoft" 
V.  State  Industrial  Accident  Commission,  78  Or.  503,  154  Pac.  106. 

The  Act  of  1913  (Laws  1913,  p.  335)  is  no  more  compulsory  than  the  Act  of 
1911  (Laws  1911,  p.  314),  which  has  been  declared  constitutional,  because 
elective.  Victor  Chemical  Works  v.  Industrial  Board  of  Illinois,  274  111. 
11,  113  N.  E.  173. 

In  the  Kentucky  Act  of  1916  (Laws  1916,  c.  33)  the  objectionable  compul- 
sory features  of  the  Act  of  1914  (Laws  1914,  c.  73),  in  so  far  as  the  employe 

2  5  The  conclusive  presumption  provided  for  in  part  3,  §  4,  does  not  render 
it  unconstitutional,  since  the  employe  is  left  free  in  the  first  instance  to 
prevent  the  presumption  by  his  own  act  if  he  so  desires.  Such  legal  pre- 
sumptions are  not  unconstitutional  or  uncommon.  A  familiar  illustration  is 
the  conclusive  presumption  that  a  party  entitled  to  a  jury  trial  in  a  civil 
action  has  waived  his  right,  unless  he  has  taken  some  affirmative  action  and 
made  demand  before  arrival  of  a  certain  point  in  the  progress  of  the  case. 
Mackin  v.  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49. 

2  6  The  Act  of  1916  is  not  violative  of  Constitution,  §  54,  forbidding  limita- 
tion on  the  amount  of  recovery  for  injuries ;  this  objection  being  obviated  by 
the  elective  nature  of  the  Act.  Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W. 
648. 

2  7  See  note  27  on  following  page. 

HON.COMP. — 7 


§  21  workmen's  compensation  98 

hibiting  class  leg-islation.^^  That  an  Act  requires  the  employe  to 
elect  at  the  time  of  his  employment  and  in  advance  of  all  injuries, 

is  concerned,  were  eliminated,  and  under  tbe  Act  of  1916  the  employer  can- 
not, without  the  employe's  consent,  bring  him  under  the  Act,  nor  does  it  op- 
erate, as  to  the  employe,  until  he  has  voluntarily  signified  in  writing  his  will- 
ingness to  accept  its  provisioDs.  Greene  v.  Caldwell,  170  Ky.  571,  1S6  S.  W. 
649. 

27  In  re  Madden,  222  Mass.  487,  111  N.  E.  379;  Mellen  Lumber  Co.  v.  In- 
dustrial Com.,  154  Wis.  114,  142  N.  W.  187,  L.  R.  A.  1916A,  374,  Ann.  Cas. 
1915B,  997;  Mathison  v.  Minneapolis  St.  Ry.  Co.,  126  Minn.  286,  148  N.  W. 
71 ;  Western  Indemnity  Co.  v.  Phillsbury,  170  Cal.  686,  151  Pac.  398 ;  State 
V.  Creamer,  85  Ohio  St.  349,  97  N.  E.  602,  39  L.  R.  A.  (N.  S.)  694 ;  Cunning- 
ham V.  N.  W.  Imp.  Co.,  44  Mont.  ISO,  119  Pac.  554 ;  Borgnis  v.  Falk  Co.,  147 
Wis.  327,  133  N.  W.  209,  37  L.  R.  A.  (N.  S.)  489;  Hawkins  v.  Bleakley  (D. 
C.)  220  Fed.- 378;  Mackin  v.  Detroit-Timkin  A.  Co.,  187  :Mich.  8,  153  N.  W. 
49.  Wood  V.  City  of  Detroit  (Mich.)  155  N.  W.  592,  L.  R.  A.  1916C,  388 ;  Jen- 
sen V.  Southern  Pac.  Co.,  215  X.  Y.  514,  109  N.  E.  600,  L.  R.  A.  1916A,  403, 
Ann.  Cas.  1916B,  276. 

In  the  Jensen  Case,  the  court  cited  as  of  controlling  effect  Noble  State 
Bank  v.  Haskell,  219  U.  S.  104,  31  Sup.  Ct.  186,  55  L.  Ed.  112,  32  L.  R.  A. 
(N.  S.)  1062,  Ann.  Cas.  1912A,  487,  holding  valid  a  state  law  whereby  solvent 
banks  are  required  to  pay  money  into  a  fund  for  the  direct  benefit  of  others, 
the  banks  benetiting  only  indirectly  from  the  supposed  benefit  to  commerce 
and  the  greater  stability  of  banking,  and  distinguished  Ives  v.  South  Buf- 
falo Ry.  Co.,  201  N.  Y.  271,  294,  94  N.  E.  431,  34  L.  R.  A.  (N.  S.)  162,  Ann. 
Cas.  1912B,  156,  which  it  held  to  be  not  controlling,  because  the  state  and 
not  the  federal  Constitution  was  involved,  and  also  because  of  the  differences 
between  the  Act  then  before  the  court  and  the  present  Act.  The  court  said : 
"The  mutual  benefits  under  law  are  direct.  Granted  that  employers  are  com- 
pelled to  insure,  and  that  tliere  is  in  that  sense  a  taking.  They  insure 
themselves  and  their  employes  from  loss,  not  others.  The  payment  of  the 
required  premiums  exempts  them  from  further  liability.  The  theoretical 
taking  doubtless  disappears  in  practical  experience.  In  fact,  every  indus- 
trial concern,  except  the  very  large  ones  who  insure  themselves,  have  for 
some  time  been  forced  by  conditions,  not  by  the  law,  to  carry  accident  in- 
demnity insurance.  A  relatively  small  part  of  the  sums  thus  paid  actually 
reach  injured  workmen  or  their  dependents.  With  the  economic  saving  of 
the  present  scheme,  insurance  in  the  long  run  should  certainly  be  as  cheap  as 
under  the  old  wasteful  system,  and  the  families  of  all  injured  workmen,  not 
a  part  only,  will  receive  some  compensation  for  the  loss  of  earning  power 
of  the  wage  earner.     Practical  experience,  as  well  as  theory,  should  be  con- 

2  8  Young  V.  Duncan,  218  Mass.  346,  106  N.  E.  1. 


99  ELECTIVE   AND   COMPULSORY   COMPENSATION  §    22 

whether  he  will  come  under  its  terms,  does  not  render  it  uncon- 
stitutional.'^ Nor  does  the  possibility  that  the  employe  in  a  given 
instance  may  not  know  all  his  rights  relative  to  electing,  affect  the 
constitutional  aspects  of  the  law.^** 

§  22.     Contractual  nature  of  elective  compensation 

Where  an  election  is  made  under  an  Act  authorizing  same,  the 
Act  usually  becomes  a  part  of  the  employment  contract,^^  and  binds 
employer  and  employe  to  settle,  as  provided  by  the  Act,  any  dis- 

sidered  in  deciding  wbether  a  given  plan  constitutes  a  taking  of  property 
without  due  process  of  law  in  violation  of  the  federal  Constitution.  A  com- 
pulsory scheme  of  insurance  to  secure  injured  workmen  in  hazardous  em- 
ployments and  their  dependents  from  becoming  objects  of  charity  certainly 
promotes  the  general  welfare  as  directly  as  does  an  insurance  of  bank  de- 
positors from  loss  under  the  Oklahoma  statute,  which  has  been  held  valid 
by  the  Supreme  Court  of  the  United  States."  But  in  Herkey  v.  Agar  Mfg. 
Co.,  90  Misc.  Rep.  457,  153  N.  Y.  Supp.  369,  the  r-ourt  says  that  a  Compensa- 
tion Act  which  was  compulsory  as  to  the  employer  would  be  violative  of  the 
due  process  of  law  provision  of  the  federal  Constitution. 

2  9  The  requirement  that  the  election  be  made  at  the  time  of  the  contract 
for  hire  is  reasonable.  Difficulties  of  a  serious  nature  might  be  presented 
if  the  right  of  election  were  allowed  to  be  exercised  after  the  happening  of 
the  accident.     Id. 

sold. 

31  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.'24o;  Rounsaville  v. 
Central  R.  Co.,  87  N.  J.  Law,  371,  94  Atl.  392;  Deibeikis  v.  Link-Belt  Co., 
261  111.  454,  104  N.  E.  211,  Ann.  Cas.  1915A,  241 ;  McRoberts  v.  National  Zinc 
C<3.,  93  Kan.  364,  144  Pac.  247;  Shade  v.  Cement  Co.,  92  Kan.  146,  139  Pac. 
1193.  Liability  vmder  the  Workmen's  Compensation  Act  does  not  arise  out 
of  negligence,  but  out  of  contract  created  by  acceptance  of  the  Act.  (Work- 
men's Compensation  Act,  §  2)  Lynch  v.  Pennsylvania  R.  R.  Co.,  SS  N.  J. 
Law,  408,  96  Atl.  395 ;  Anderson  v.  North  Alaska  Salmon  Co.,  2  Cal.  I.  A.  C. 
Dec.  241.  The  relation  of  employer  and  employe,  under  said  act,  being  vol- 
untary and  not  compulsory,  is  contractual ;  the  statute  becoming  an  integral 
part  of  the  contract,  and  limiting  the  rights  and  liabilities  of  employer  and 
employe,  binding  upon  the  parties.     Gooding  v.  Ott  (W.  Va.)  87  S.  E.  863. 

Persons  operating  under  the  terms  of  the  Compensation  Act,  by  election  or 
operation  of  law,  make  the  terms  and  provisions  of  the  Act  a  part  of  the  con- 
tracts made  with  labor ;   hence  the  rule  excluding  public  corporations  exercis- 


§  22  workmen's  compensation  100 

pute  arising  between  them  as  to  compensation  for  injury. ^^  Mu- 
tuality being-  essential  to  any  contract,  an  employe  cannot,  by 
electing  to  come  under  the  Act,  bring  the  employer  under  it.^^ 
Likewise,  where  the  employer  alone  has  exercised  a  right  of  election 
given  to  both,  the  employe  is  not  bound  by  such  contractual  rela- 
tion, and  accordingly  is  not  limited  in  his  recovery  to  the  compen- 
sation provided  by  the  Act.  He  cannot  be  said  to  be  bound  by  a 
contract  which  has  never  been  made.  Where  both  have  elected  to 
come  within  the  Act,  then,  in  seeking  redress  under  it,  the  action 
must  be  brought  in  accordance  with  its  provisions;  but,  when  the 
employer  has  elected  not  to  be  bound  by  the  Act,  then  the  parties 
are  remitted  to  their  action  at  law  and  are  governed  by  the  prin- 
ciples of  law  applicable  to  such  actions,  except  alone  as  to  the 
matter  of  defenses.  The  employer  cannot  insist  that  the  employe 
be  bound  by  all  the  provisions  of  a  law  which  the  employer  has 

ing  sovereignty  from  liability  on  account  of  torts  does  not  apply.  Radigen  v. 
Sanitary  Dist.  of  Chicago,  Bulletin  No.  1,  111.,  p.  138.  The  Compensation  Act 
■of  Illinois  is  a  contract  between  the  employer  and  all  his  employes  and  the 
state,  represented  by  the  Industrial  Board,  in  which  they  agree  to  accept  all 
the  terms  and  provisions  of  the  Act,  where  the  employer  and  the  employes 
elect  to  be  bound  by  the  Act.  Fitt  v.  Central  Illinois  Public  Service  Co., 
Bulletin  No.  1,  111.,  p.  129. 

Acceptance  of  the  Act,  whether  made  expressly  or  impliedly,  as  permitted 
by  the  Act,  makes  its  provisions  part  of  the  employment  of  contract.  The 
significance  of  the  contract  relation  is  foundational  in  the  consideration  of 
cases  under  any  Compensation  Act  contractual  in  character.  (Laws  1913,  c. 
138)  Kennerson  v.  Thames  Towboat  Co.,  89  Conn.  367,  94  Atl.  372,  L.  R.  A. 
1916A,  436. 

In  Kenny  v.  Union  Ry.  Co.,  166  App.  Div.  497,  152  N.  Y.  Supp.  117,  it  was 
said,  however,  that  the  Compensation  Act  is  not  to  be  read  into  the  contract 
of  employment  as  forming  part  of  it  and  as  dependent  for  its  enforcement  upon 
the  validity  of  the  contract  of  employment. 

3  2  Deibeikis  v.  Link-Belt  Co.,  261  111.  454,  104  N.  E.  211,  Ann.  Cas.  1915A,  241. 

33  (Laws  1911,  p.  315)  Dietz  v.  Big  Muddy  Coal  &  I.  Co.  (1914)  263  111.  480, 
105  N.  E.  289,  5  N.  C.  C.  A.  419 ;  Price  v.  Clover  Leaf  Coal  Min.  Co.  (1914)  188 
111.  App.  27.  Salus  v.  Great  Northern  R.  Co.  (1914)  157  Wis.  546,  147  N.  W. 
1070. 


IQl  ELECTIVE   AND  COMPULSORY  COMPENSATION  §    23 

elected  not  to  be  bound  by.^*  A  mutual  agreement  by  employer 
and  employe  not  to  be  bound  by  the  compensatory  provisions  of 
an  Act  becomes  effective  immediately.^"^ 

§  23.     Presumption,  notice  and  effect  of  election 

For  an  election  to  be  effective  it  must  be  made  as  prescribed  by 
the  statute  ;^*^  but  a  statement  of  an  election  need  not  be  in  any 
technical  form,  or  be  evidenced  with  the  same  formality  as  a  deed 
or  other  instrument  transferring  property."  Under  some  statutes 
an  election  may  be  presumed  from  failure  to  give  notice  to  the 
contrary,^^  or  from  silence.^^    Under  Acts  requiring  that  the  notice 

3  4  Crooks  V.  Tazewell  Coal  Co.,  263  111.  343,  105  N.  E.  132,  Ann.  Gas.  19150^ 
304. 

35  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  11,  p.  16. 

36  The  approval  of  the  employer's  notice  of  acceptance  of  the  Act  by  the- 
Accident  Board  is  essential  to  the  validity  of  his  election.  (Pub.  Acts,  Extra 
Sess.,  1912,  No.  10)  Bernard  v.  Michigan  United  Traction  Co.  (Mich.)  154 
N.  W.  566. 

3  7  (Workmen's  Compensation  Act  Kan.  1911,  §  44)  Piatt  v.  Swift  &  Co.  (Mo. 
App.)  176  S.  W.  434. 

To  have  the  protection  afforded  under  chapter  10,  Acts  of  the  Legislature 
of  1913  (Code  1913,  c.  15P,  §§  1-55  [sees.  657-7111),  known  as  the  Workmen's 
Compensation  Act,  an  employer  must  not  only  have  paid  the  premiums  pro- 
vided thereby,  but  the  injured  employe  must  have  had  actual  notice  that  his 
employer  had  elected  to  pay  into  the  Workmen's  Compensation  Fund  the  pre- 
miums provided  by  said  Act;  but  typewritten  or  printed  notices  thereof,  when 
duly  posted  in  conspicuous  places  about  his  place  or  places  of  business,  as 
required  'by  said  Act,  will,  as  provided  thereby,  constitute  sufficient  notice  to 
all  his  employes  that  he  has  made  such  election.  Daniels  v.  Charles  Boldt  Co. 
(W.  Va.)  88  S.  E.  613. 

38  Johnson  v.  Nelson,  128  Minn.  158,  150  N.  W.  620;  Dietz  v.  Big  Muddy  Coal 
&  Iron  Co.,  263  111.  480,  105  N.  E.  289;  Op.  Sp.  Counsel  to  Iowa  Indus.  Cora. 
(1915)  pp.  3,  5. 

Both  employer  and  employe  are  under  the  Act,  where  neither  has  elected 
to  the  contrary.  Shade  v.  Ash  Grove  Lime  &  Portland  Cement  Co.  (1914)  92 
Kan.  146,  139  Pac.  1193. 

It  is  an  essential  feature  of  the  Act  that  every  employer  and  employS  com- 
as Eounsaville  v.  Central  R.  Co.,  87  N.  J.  Law,  871,  94  Atl.  392. 


§  23  .  workmen's  compensation  102 

be  given  at  the  time  of  the  contract  of  hire,*°  the  employe  waives 
his  right  of  action  at  common  law  where  he  fails  to  give  the  written 
notice  at  the  time  of  his  contract  of  hire,  though  he  has  no  knowl- 
edge or  notice  that  the  employer  is  a  subscriber.*^  Under  the  Ari- 
zona Act,  the  employe  need  not  elect  in  advance  of  his  injury.*^ 
The  requirement  that  notice  be  given  to  prevent  a  presumption  of 
an  election  is  not  ordinarily  deemed  objectionable,*^   though  the 

ing  within  its  terms  is  bound  by  it,  unless  be  maizes  an  election  not  to  accept 
it.  No  provision  is  anywhere  in  the  Act  for  an  acceptance.  There  is  always 
an  acceptance,  unless  there  be  an  election  not  to  accept.  (Laws  1913,  c.  467; 
Gen.  St.  1913,  §§  8195-8230)  Harris  v.  Hobart  Iron  Co.,  127  Minn.  399,  149  N. 
AV.  662.  A  workman  injured  before  giving  notice  was  under  the  Act,  though 
he  gave  notice  within  thirty  days  after  the  Act  went  into  effect.  Id.  That 
the  employer  was  designated  at  times  by  witnesses  and  attorneys  as  Barnard 
&  Cope,  Barnard  &  Cope  Company,  and  Barnard-Cope  Company,  instead  of 
its  true  name  of  Barnard-Cope  Manufacturing  Company,  was  too  technical 
and  unmeritorious  a  defense  to  remove  the  presumption  that  the  employer 
had  accepted  and  was  bound  by  the  Act.  (G.  S.  1913,  §  8205)  Mahowald  v. 
Thompson-Starrett  Co.  (Minn.)  158  N.  W.  913. 

The  Act  of  1911  is  effective  as  to  all  employers  and  employes  within  the 
prescribed  employments  until  the  required  notice  to  the  contrary  is  given. 
The  elective  feature  is  to  be  exercised  to  avoid  being  governed  by  the  Act, 
and  not  to  cause  the  Act  to  be  applied  in  any  given  case.  Dietz  v.  Big  Muddy 
Coal  &  I.  Co.,  263  111.  480,  105  N.  E.  289,  5  N.  C.  C.  A.  419.  Where  an  express 
company  comes  under  the  Act  by  operation  of  law,  it  is  conclusively  presum- 
ed to  have  filed  notice  of  its  election  under  paragraph  (b),  §  1.  Zorcic  v. 
Adams  Express  Co.,  Bulletin  No.  1,  111.,  p.  55. 

40  If  an  employe  desires  to  avoid  the  Act  and  preserve  his  common-law 
rights,  he  must  give  notice  to  that  effect,  in  the  absence  of  fraud,  when  he  en- 
ters the  employment,  rather  than  when  he  is  notified  of  insurance  by  the  em- 
ployer, or  he  is  held  to  have  availed  himself  of  the  Act.  Young  v.  Duncan, 
218  Mass.  346,  106  N.  E.  1;  Mackin  v,  Detroit-Timkin  Axle  Co.,  187  Mich. 
8,  153  N.  W.  49. 

*i  (St.  1911,  c.  751,  pt.  1,  §  5)  Young  v.  Duncan,  218  Mass.  346,  106  N.  E. 
1 ;   Slackin  v.  Detroit  Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49. 

4  2  Behringer  v.  Inspiration  Consol.  Copper  Co.,  17  Ariz.  232,  149  Pac.  1065, 
Consolidated  Arizona  Smelting  Co,  v.  Ujack,  15  Ariz.  382,  139  Pac.  765,  5  N. 
C.  C.  A.  742. 

43  The  requirement  that  the  employe  give  notice  affects  no  existing  property 
right,  and  is  therefore  not  objectionable  on  that  ground.     It  deals  with  no 


103  ELECTIVE  AND   COMPULSORY   COMPENSATION  §    23 

Supreme  Court  of  Kentucky  seems  to  take  a  different  view,  in  an 
opinion  wherein  it  held  the  original  Kentucky  Act  invalid  and 
said :  "Some  provision  should  be  made  in  the  Act  whereby  the  em- 
ploye signifies  his  acceptance  of  the  Act  by  some  affirmative  act. 
Silence  should  not  be  construed  into  acceptance."  **  When  the 
elective  compensation  provisions  are  not  intended  to  apply  to  the 
employment  of  minors,  the  notice  must  be  given  by  or  to  the  guard- 
ian of  the  minor;  a  notice  posted  in  the  works  or  by  means  of  the 
pay  envelope  does  not  suffice.*"  A  requirement  of  the  Massachu- 
setts Act  that  every  subscriber  give  notice  to  every  person  with 
whom  he  is  about  to  enter  into  a  contract  of  hire  that  he  has  pro- 
vided for  payment  to  injured  employes  by  the  association,  and  that 
he  file  a  copy  of  the  notice  with  the'  Industrial  Accident  Board,  is 
merely  directory  to  the  employer,  and  his  failure  to  comply  with 
same  does  not  prevent  the  employe  from  being  held  to  have  waived 
his  common-law  right  of  action  through  failure  to  give  notice  at 
the  time  of  the  making  of  the  employment  contract.***  Where  em- 
ployer and  employe  assent,  whether  expressly  or  by  implication  of 
the  statute,  to  an  Act,  they  assent  to  the  whole   scheme  of  the 

property  right  after  it  bas  come  into  being.  It  affects  a  situation  which  ante- 
dates any  property  right  arising  out  of  tort  and  simply  establishes  a  status  be- 
tween subscribers  under  the  Act  and  their  employes  in  the  absence  of  express 
action  by  the  latter  manifesting  a  desire  to  elect  a  different  status.  (St.  1911, 
c.  751,  pt.  1,  §  5)  Young  v.  Duncan,  218  Mass.  346,  106  N.  E.  1.  "No  complaint 
can  be  made  that  the  employe  is  thereby  compelled  to  elect  without  sufficient 
knowledge.  Ignorance  of  law  is  commonly  no  excuse  for  conduct  or  failure 
to  act.  The  employe  is  not  required  to  act  without  inquiry  as  to  the  fact  of 
insurance  by  the  employer.  He  has  only  to  ask  for  information.  That  is  noth- 
ing more  than  is  required  in  most  of  the  affairs  of  life  in  order  that  one  may 
act  intelligently."    Id. 

4  4  State  Journal  Co.  v.  Workmen's  Com.pensation  Board,  162  Ky.  387,  172 
S.  W.  674,  L.  R.  A.  1916A,  402,  alhrming  161  Ky.  562,  170  S.  W.  1166,  L.  R.  A. 
1916A,  389,  Ann.  Cas.  1916B,  1273,  on  rehearing. 

4  5  (P.  L.  1911,  p.  136,  §  2)  Troth  v.  Millville  Bottle  Works,  86  N.  J.  Law, 
558,  91  Atl.  1031,  98  Atl.  435. 

4  6  (St.  1911,  c.  751,  pt.  4,  §  21,  as  amended  by  St.  1912,  c.  571,  §  16)  Young  v. 
Duncan,  218  Mass.  346,  106  N.  E.  1. 


§  23  workmen's  compensation  104 

Act.*^  An  acceptance  filed  by  the  employer  five  days  before  an 
Act  took  effect  has  been  held  valid,  and  to  give  the  employer  the 
benefit  of  the  Act  from  the  time  it  took  effect.*^  Under  the  Wash- 
ington Act,  when  the  injured  employe  has  once  exercised  his  op- 
tion, his  decision  is  final  and  may  not  be  withdrawn.*^  An  em- 
ployer who  elects  not  to  come  under  the  compensatory  part  of  the 
Minnesota  Act  is  governed  by  the  liability  part,  and  cannot  relieve 
himself  of  his  liability  by  notifying  his  employes  that  he  will  not  be 
liable  for  any  damages  or  compensation  whatever.^" 

Under  the  Wisconsin  Act,  which  permits  railway  companies  to 
adopt  compensation  as  to  all  their  employes,  not  merely  as  to  shop 
and  office  employes, ^^  a  notice  filed  by  a  railroad  company,  stating 
that  the  company  accepted  the  provisions  of  the  Act,  and  that  the 
nature  of  the  employment  was  office  and  shop  work,  was  sufficient 
to  include  all  employes. ^^  Where  an  employe,  whose  contract  of 
hiring  had  been  made  several  months  prior  to  the  employer's  elec- 
tion to  come  under  this  Act,  has  given  no  notice  in  writing  to  come 
under  the  Act,  and  thirty  days  have  not  elapsed  after  the  employ- 
er's election  and  before  the  accident,  the  employe  is  not  under  the 
Act  and  cannot  recover.^^  Nor  can  there  be  any  recovery  in  case  of 
a  claim  filed  against  an  independent  contractor  as  employer,  who 
has  not  filed  his  election  to  come  under  this  Act  prior  to  the  time 
of  the  accident.^* 

47  Scott  V.  Payne  Bros.,  Inc.,  85  N.  J.  Law,  446,  89  Atl.  927. 

48  (Pub.  Laws,  1911-12,  c.  831,  art.  1,  §  5,  became  operative  in  October,  1912) 
Coakley  v.  Mason  Mfg.  Co.,  37  R.  I.  46,  90  Atl.  1073. 

49  (Wk.  Comp.  Act  Wash.  §  8)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  19. 
60  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  17. 

51  Minneapolis,  St.  P.  &  S.  S.  M.  Ry.  Co.  v.  Industrial  Commission,  153  Wis. 
552,  141  N.  W.  1119,  Ann.  Cas.  1914D,  655. 

52  (Laws  1911,  c.  50;    St.  1911,  §§  2394—1  to  2394—31)  Id. 

5  3  (Wis.  Wk.  Comp.  Act,  §§  2394—8  [1],  [2]).  Wambold  v.  Fox  Ice  Co.,  Rep. 
Wis.  Indus.  Com.  1914-15,  p.  36;  Selsus  v.  Case  Threshing  Machine  Co.,  Rep. 
Wis.  Indus.  Com.   1914-15,  p.  22. 

6  4  Zobel  V.  Godlevski,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  12. 


105  ELECTIVE   AND   COMPULSORY   COMPENSATION  §    23 

Where  an  employer  files  notice  of  an  election  not  to  come  un- 
der the  provisions  of  the  Illinois  Act,  the  employe  has  no  right  to 
elect  either  way,  and  his  declaration,  in  an  action  for  damages, 
need  not  allege  either  acceptance  or  rejection. ^"^  In  such  action, 
damages  are  to  be  assessed  the  same  as  in  any  common-law  action 
for  personal  injury,  except  that  any  contributory  negligence  of 
which  the  workman  may  have  been  guilty  may  reduce  the  amount 
of  the  damages.^''  The  elective  nature  of  this  Act  requires  that  a 
reasonable  time  be  given  by  it  in  which  to  exercise  the  election." 
But  where  the  employer  had  more  than  a  month  in  which  to  learn 
of  the  Compensation  Act  and  file  notice  of  election,  prior  to  the 
accident,  it  could  not  complain  of  want  of  sufficient  time  in  which 
to  make  an  election. ^^ 

Where  the  employer  did  not  elect  to  come  under  the  Michigan 
Act  until  December  23d,  the  relations  existing  between  the  parties 
at  time  of  the  injury  on  October  7th  preceding  were  not  affected  by 
the  Act.^^  There  was  a  like  ruling  in  a  case  under  the  Wisconsin 
Act,  which  allows  the  workman  thirty  days  in  which  to  elect,  where 
the  employer  had  elected  but  the  workman  had  not,  and  the  thirty 
days  had  not  expired,  and  the  employment  contract  was  made 
before  the  employer's  election.^" 

The  act  of  the  treasurer  of  a  corporation  in  filing  a  notice  accept- 
ing the  provisions  of  the  Rhode  Island  Act  was  ratified  by  the 
corporation  where  its  directors  acquiesced  in  it  and  failed  to  dis- 
affirm or  repudiate  it.®^    A  notice  of  acceptance  posted  in  the  em- 

5  5  Favro  v.  Superior  Coal  Co.,  188  111.  App.  203. 

5  6  Frencli  v.  Cloverleaf  Coal  Mining  Co.,  190  111.  App.  400. 

6  7  Victor  Chemical  Works  v.  Industrial  Board  of  Illinois,  274  111.  11,  113  N. 
E.  173. 

5S  Id. 

5  9  Shevchenko  v.  Detroit  United  Ry.  (Mich.)  155  N.  W.  423. 

60  Green  v.  Appleton  Woolen  Mills,  162  Wis.  145,  155  N.  W.  958. 

61  De  Pasquale  v.  Mason  Mfg.  Co.  (R.  I.)  97  Atl.  816. 


§  23  workmen's  compensation  106 

ployer's  place  of  business  was  sufficient,  where  it  was  a  copy  of 
the  notice  filed  with  the  Commissioner  of  Industrial  Statistics. °^ 

That  a  workman  received  two  vouchers  for  indemnity  under  the 
Washington  Act  did  not  estop  him  from  denying  that  he  was  with- 
in the  terms  of  the  Act,  where  he  did  not  exact  the  vouchers  or 
receive  any  money  on  them.^^ 

Where  notice  of  an  election  to  remain  outside  the  provisions  of 
an  Act  is  required,  and  an  employer  has  filed  such  notice,  he  will 
remain  outside  until  the  notice  is  withdrawn,  without  filing  a  new 
notice  at  the  beginning  of  each  year.^*  Likewise  when  one  brings 
himself  within  an  Act  as  an  extrahazardous  employer  of  labor,  ei- 
ther by  direct  election  or  by  operation  of  law,  he  remains  under  its 
provisions  and  is  bound  thereby  until  taken  out  according  to  the 
specific  manner  and  methods  provided  in  the  Act.*'^ 

In  a  Connecticut  case,  where  the  employer,  who  did  not  regu- 
larly employ  any  one,  and  whose  only  employe  at  the  time  of  the 
injury  was  the  claimant,  had  not  given  notice  of  his  acceptance  of 
the  Act,  the  claim  was  dismissed  by  the  commissioner."^  In  an- 
other case,  where  the  employer  gave  the  "written  or  printed  no- 
tice from  the  employer  or  employe  to  the  other  *  *  *  served 
by  personal  presentation  or  by  registered  letter"  required  by  the 
Connecticut  Act,  by  means  of  a  clause  in  the  contract  of  employ- 
ment acknowledging  receipt  of  notice  of  the  employer's  nonelec- 
tion  of  the  Act,  signed  by  the  employe  at  the  time  of  his  employ- 
ment, without  any  threat  of  dismissal  for  failure  to  sign,  but  with 
the  understanding  that  he  was  required  to  sign  it,  it  was  held  the 
employer  was  not  under  the  Act.     Even  if  such  contract  was  pro- 

62  Id. 

63  Puget  Sound  Traction,  Light  &  Power  Co.  v.  Schleif,  220  Fed.  48,  135 
C.  C.  A.  616. 

64Bateman  v.  Carterville  &  Big  Muddy  Coal  Co.,  188  111.  App.  357;  Syn- 
kus  V.  Big  Muddy  Coal  &  Iron  Co.,  190  111.  App.  602. 

6  5  Flash  V.  Pattridge  Metal  Equipment  Co.,  Bulletin  No.  1,  111.,  p.  46. 

66  Gertel  v.  H.  W.  Dorman  &  Co.,  1  Conn.  Comp.  Dec.  616. 


107  ELECTIVE  AND  COMPULSORY  COMPENSATION         §  24 

cured  by  duress  or  undue  influence,  it  was  only  voidable,  and  was 
affirmed  by  the  employe's  failure  to  repudiate  or  demand  rescis- 
sion after  discussing  the  efifect  of  the  contract  with  his  coemployes, 
he  understanding  that  it  affected  his  right  to  compensation,  though 
he  did  not  read  it.^'^  It  was  also  held  that  where  the  defendant  had 
filed  a  notice  of  refusal  to  accept  the  Act  with  the  commissioners, 
and  his  two  sons  testified  that  they  saw  the  notice  served  on  the 
claimant,  though  he  claimed  never  to  have  received  notice,  the 
employer  was  not  under  the  Act;  ^^  and  that  where  an  employer  had 
filed  notice  of  his  refusal  to  accept  the  Act  with  the  commissioner, 
but  had  not  served  such  notice  on  the  claimant  workman,  he  could 
be  held  under  the  Act.''°  Part  B  of  this  Act  applies  to  all  employers 
who  have  not  rejected  it  as  provided,  regardless  of  whether  they 
employ  more  than  five  persons/" 

§  24.     Pleading,  and  proof  of  election 

A  certified  copy  of  a  required  notice  of  an  election  to  remain 
outside  the  provisions  of  an  Act  is  competent  evidence  of  it.'^^  A 
legal  presumption  that  both  employer  and  employe  are  under  the 
provisions  of  the  Act  can  be  rebutted  only  by  showing  that  they 
have  filed  an  election  to  the  contrary.''^  Evidence  is  admissible,  of 
course,  to  show  that  the  employer  has  elected  not  to  be  bound.^^ 

67  O'Rourke  v.  Cudahy  Packing  Co.,  1  Conn.  Comp.  Dec.  8. 
6  8  Smith  V.  Forscytlie,  1  Conn.  Comp.  Dec.  100. 

6  9  Mazura  v.  Klingon,  1  Conn.  Comp.  Dec.  296. 

7  0  Neumann  v.  Turner,  1  Conn.  Comp.  Dec.  130;  Brewer  v.  Belcher,  1  Cont 
Comp.  Dec.  111. 

71  Id. 

72  Krisman  v.  Johnston  City  &  Big  INIuddy  Coal  &  Mining  Co..  190  111.  App 
612;  Synkus  v.  Big  Muddy  Coal  &  Iron  Co.,  190  111.  App.  602;  Gorrell  ^, 
Battelle,  93  Kan.  370,  144  Pac.  244. 

The  presumptive  rule  herein  established  merely  affects  a  question  of  pre- 

7  3  (Laws  1911,  p.  314)  Crooks  v.  Tazewell  Coal  Co.,  263  111.  343,  105  N.  E. 
132,  Ann.  Cas.  1915C,  804. 


§  24:  workmen's  compensation  108 

It  is  not  essential,  under  the  Kansas  Act,  that  the  authority  of 
the  officer  of  the  employer  corporation  to  make  and  file  the  state- 
ment of  election  be  affirmatively  shown,  where  it  clearly  appears 
that  notices  of  the  employer's  election  to  come  under  the  Act  were 
posted  in  all  parts  of  its  plant  long  prior  to  the  injury.'^*  By  ac- 
cepting payments  in  accordance  with  an  Act  and  making  settlement 
under  it,  the  employe  admits  that  the  employer  has  elected  to  come 
under  the  Act/^ 

§  25.     Abolition  of  defenses  in  common-law  actions 

Under  the  common-law  rule,  an  employe  assumes  all  ordinary 
risks  incident  to  his  employment,  and  his  employer  is  only  liable 
when  he  is  negligent  and  the  employe  not  contributorily  negligent^ 
and  the  injury  not  caused  by  the  negligence  of  a  fellow  servant.^® 
The  Compensation  Acts  either  modify  or  abrogate  this  rule.  They 
ordinarily  endeavor  to  induce  acceptance  of  their  compensatory  pro- 
visions by  abolishing  the  common-law  defenses  of  contributory  neg- 

sumption  or  burden  of  proof,  which  it  is  entirely  within  the  control  of  the  Leg- 
isluture  to  regulate  so  long  as  the  parties  are  left  entirely  free  to  make  what- 
ever contract  they  choose,  as  does  this  Act.  Sexton  v.  Newark  District  Tele- 
graph Co.,  84  N.  J.  Lraw,  85,  8G  Atl.  451.  Where  the  complaint  sets  up  a  con- 
tract of  hiring,  made  after  the  taking  effect  of  the  New  Jersey  Act,  and  does 
not  aver  that  the  contract  contained  any  express  statement  in  writing  that 
the  elective  compensation  provisions  were  not  intended  to  apply  or  that  any 
written  notice  to  that  effect  was  given,  it  will  be  presumed  that  the  parties 
accepted  and  were  bound  by  such  provisions.  Gregutis  v.  Waclark  Wire 
Works,  SG  N.  J.  Law,  610,  92  Atl.  354. 

However,  where  it  appeared  that  at  the  time  of  the  injury  the  Workmen's 
Compensation  Act  (Laws  1911,  c.  218,  §  8)  was  in  force,  and  there  was  neither 
allegation  nor  proof  that  the  defendant  corporation  had  elected  to  come  with- 
in its  provisions,  but  there  was  some  evidence  that  it  had  done  so,  the  court 
properly  assumed  and  instructed  that  such  an  election  had  not  been  made. 
Spottsville  V.  Western  States  Portland  Cement  Co.,  94  Kan,  258,  146  Pac.  356. 

7  4  (Workmen's  Compensation  Act  Kan.  §  44)  Piatt  v.  Swift  &  Co.  (Mo. 
App.)  176  S.  W.  434. 

7  5  (Workmen's  Compensation  Act  Kan.  §  44)  Id. 

7  6  (Wk.  Comp.  Act  Wash.  §  8)  Rulings  Wash.  Indus.  Com.  1915,  p.  19. 


1^ 


109  ELECTIVE  AND  COMPULSORY  COMPENSATION         §  25 

ligence,  assumption  of  risk,  and  negligence  of  fellow  servant,  in 
■common-law^  actions  for  damages,"  and  by  saving  these  defenses 
to  the  employer  v^here  the  employe  refuses  to  accept  such  provi- 

7  7  Lydman  v.  De  Haas,  185  Mich.  128,  151  N.  W.  718.  Consumers  Lignite 
Co.  V.  Grant  (Tex.  Civ.  App.)  181  S.  W.  202.  Boody  v.  K.  &  C.  Mfg.  Co.,  77 
I^.  H.  208,  90  Atl.  859,  L.  R.  A.  191GA,  10,  Ann.  Cas.  1914D,  1280,  5  N.  C.  C. 
A.  840 ;  Crucible  Steel  Forge  Co.  v.  Moir,  135  C.  C.  A.  49,  219  Fed.  151,  8  N. 
C.  C.  A.  1006 ;  Cavanaugh  v.  Morton  Salt  Co.,  152  Wis.  375,  140  N.  W.  53. 

Where  the  employer  has  elected  not  to  come  under  the  provisions  of  the 
Compensation  Act,  it  is  not  a  defense  to  an  action  by  the  servant  that  he  as- 
sumed the  risk  or  that  his  contributory  negligence  proximately  caused  the 
injury.  Bell  v.  Toluca  Coal  Co.,  272  111.  576,  112  N.  E.  311;  Synkus  v.  Big 
Muddy  Coal  &  Iron  Co.,  190  111.  App.  602 ;  Price  v.  Clover  Leaf  Coal  Mining 
Co.,  188  111.  App.  27. 

The  Legislature  intended  to  penalize  every  employer  who  neglected  to  pro- 
vide insurance  by  fixing  his  liability  as  under  the  common  law,  modified  by 
Code  Supp.  1913,  §  2477m  (c)  1,  2,  3,  and  4.  Op.  Sp.  Counsel  to  Iowa  Indus. 
Com.  (1915)  p.  36.  In  the  event  the  employer  elects  to  reject  the  act,  or  fails 
to  provide  the  insurance  required  under  section  2477m41,  Supplement  to  the 
Code,  1913,  he  will  be  liable  to  his  injured  employes  the  same  as  under  the 
common  law,  as  modified  by  statute,  and  he  can  no  longer  plead  contributory 
negligence,  fellow  servant  rule,  or  assumption  of  risk.    Id. 

T\Tiere  the  employer  was  not  a  subscriber  under  this  act,  the  only  question 
before  the  jury  was  defendant's  negligence;  contributory  negligence  and  as- 
sumption of  risk  not  being  available  as  defenses.  (St.  1911,  c.  751)  I'ope  v. 
Heywood  Bros.  &  Wakefield  Co.,  221  Mass.  143,  108  N.  E.  1058.  Where,  in 
an  employe's  action  under  the  common  law,  it  appeared  that  the  Workmen's 
Compensation  Act  was  in  force  at  the  date  of  plaintiff's  injuries,  and  that  de- 
fendants were  not  subscribers  under  the  terms  of  the  statute,  neither  contrib- 
utory negligence  nor  assumption  of  risk  was  available  as  a  defense.  Dooley 
V.  Sullivan,  218  Mass.  597,  106  N.  E.  604. 

The  Michigan  Act  provides  that  in  any  action  to  recover  damages  for  per- 
sonal injury  sustained  by  an  employe  in  the  course  of  his  employment,  or  for 
death  resulting  from  personal  injuries  so  sustained,  it  shall  not  be  a  defense: 
(a)  That  the  employe  was  negligent  unless  and  except  it  shall  appear  that 
such  negligence  was  willful;  (b)  that  the  injury  was  caused  by  the  negli- 
gence of  a  fellow  employe ;  (c)  that  the  employe  had  assumed  the  risks  inher- 
ent in  or  incidental  to  or  arising  out  of  his  employment,  or  arising  from  the 
failure  of  the  employer  to  provide  and  maintain  safe  premises  and  suitable 
appliances.  It  is  then  enacted  that  the  above  provisions  shall  not  apply  to 
actions  to  recover  damages  for  the  death  of,  or  for  personal  injuries  sustained 
by,  employes  of  any  employer  who  has  elected,  with  the  approval  of  the  In- 
dustrial Accident  Board  thereinafter   created,  to  pay   compensation  in   the 


§  25  workmen's  compensation  110 

sions.'^^  But  where  the  employer  is  not  under  the  Act,  the  em- 
ploye need  not  elect  to  be  under  it  that  the  common-law  defenses 

manner  and  to  the  extent  thereinafter  provided.  Adams  v.  Acme  White 
Lead  &  Color  Wks.,  182  Mich.  157,  148  N.  W.  485,  L.  R.  A.  1916A,  283. 

If  the  employer  has  elected  not  to  become  subject  to  part  2,  he  cannot  inter- 
pose as  a  defense,  in  an  action  brought  under  part  1,  that  the  employe  was 
negligent,  unless  such  negligence  was  willful;  nor  that  he  had  assumed  the 
risk ;  nor  that  the  injury  was  caused  by  the  negligence  of  a  coemploye.  De- 
priving the  employer  of  the  three  defenses  named,  in  case  he  elects  not  to  be- 
come subject  to  part  2  of  the  act,  is  the  only  substantial  change  made  by  part 
1  in  the  previously  existing  law.  If  the  employer  declines  to  accept  the  provi- 
sions of  part  2,  he  loses  the  benefit  of  these  three  defenses ;  if  he  accepts  the 
provisions  of  part  2,  but  the  employ^  declines  to  accept  such  provisions,  the 
employer  retains  the  benefit  of  such  defenses.  Mathison  v.  Minneapolis  St. 
Ry.  Co.,  126  Minn.  286,  148  N.  W.  71. 

Contributory  negligence  will  not  bar  recovery,  where  the  employer  has  not 
elected  to  take  the  benefit  of  the  Workmen's  Compensation  Act  (102  Ohio 
Laws,  p.  529,  Act  June  15,  1911,  §  21—1)  Denver-Laraiue  Realty  Co.  v.  Wyo- 
ming Trout  &  P.  Co.,  219  Fed.  155,  135  C.  C.  A.  53.  Section  26  of  the  Work- 
men's Compensation  Act  of  1913,  abolishing  defenses;  relates  to  civil  actions 
maintained  in  the  courts,  and  it  has  no  application  to  proceedings  before  the 
Industrial  Commission  of  Ohio  brought  under  favor  of  section  27  of  said  Act. 
Biddinger  v.  Champion  Iron  Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  70 ; 
Skinner  v.  Stratton  Fire  Clay  Co.,  Id.  p.  103. 

Assumption  of  risk  is  no  defense.  Memphis  Cotton  Oil  Co.  v.  Tolbert  (Tex. 
Civ.  App.)  171  S.  W.  309. 

The  defenses  abolished  by  the  Washington  Act,  commonly  referred  to  as 
"contributory  negligence,"  "assumption  of  risk,"  and  "fellow  servant  rule," 
are:  (1)  Tliat  the  employ^  was  not,  when  injured,  in  the  exercise  of  due  care, 
or  was  guilty  of  contributory  negligence ;  (2)  that  the  injury  received  by  the 
employe  was  one  of  the  ordinary  risks  incident  to  the  contract  of  employ- 
ment; (3)  that  the  injury  was  the  result  of  the  negligence  of  a  fellow  serv- 
ant. (Wk.  Comp.  Act  Wash.  §  8)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p. 
19.     Under  the  Washington  Act,  the  defaulting  employer  cannot  avail  him- 

7  8  The  policy  of  the  law  to  preserve  such  defenses  to  an  employer  who  shall 
elect  to  come  under  the  act,  respecting  an  employe  who  does  not,  is  a  con- 
stitutional method  of  coercing  both  parties  to  accept  the  benefits  and  burdens 
of  the  new  system  in  place  of  tliose  of  the  old  one.  (St.  1911,  §  2394—1)  Kar- 
ny  V.  Northwestern  Malleable  Iron  Co.,  160  Wis.  316,  151  N.  W.  786. 

The  effect  of  this  part  B,  §  4,  is  to  save  to  the  employer  his  common-law  de- 
fenses where  the  employe  has  refused  to  accept  part  B.  Bayon  v.  Beckley,  89 
Conn.  154,  93  Atl.  139. 


Ill  ELECTIVE   AND  COMPULSORY   COMPENSATION  §    25 

may  be  cut  off.'^°  Whether  these  defenses  are  abolished  is  some- 
times made  to  depend  on  the  number  of  workmen  employed  by  one 
employer.^"  Abolition  of  these  defenses  does  not  render  an  Act 
unconstitutional,^^  since,  having  been  evolved  by  the  courts,  they 

self  of  the  "common-law"  defenses,  which  have  been  so  effective  in  defeat- 
ing personal  claims  heretofore,  where  the  fact  of  the  injury  of  his  employ^ 
is  not  contested.    Id. 

The  common-law  defenses  of  contributory  negligence,  assumption  of  risk, 
and  negligence  of  fellow  servants  are  denied  an  employer  who  has  not  elect- 
ed to  pay  premiums.  (Wk.  Comp.  Act,  §  26  [Code  1913,  c.  15P,  §  26  (sec. 
682)])  Watts  V.  Ohio  Valley  Electric  Ry.  Co.  (W.  Va.)  88  S.  E.  659.  Abolition 
of  the  doctrine  of  assumption  of  risk  does  not  prescribe  acts  on  the  part  of 
an  employer  which,  by  the  common  law,  were  rightful  and  free  from  negli- 
gence. Its  purpose  is  to  forbid  an  application  of  the  principle  of  waiver  by 
which,  at  common  law,  the  servant  is  made  to  assume  the  risk  of  known  neg. 
ligence  on  the  part  of  the  master,  by  reason  of  his  continuing  in  the  service 
with  knowledge  thereof.  De  Francesco  v.  Piney  Mining  Co.  (W.  Va.)  86  S.  E. 
777. 

The  defense  of  contributory  negligence  is  expressly  abolished  where  the  neg- 
ligence was  not  willful.  Besnys  v.  Herman  Zohrlaut  Leather  Co.,  157  Wis. 
203,  147  N.  W.  37. 

T9  (Laws  1911,  pp.  315,  316,  §§  1,  3)  Dietz  v.  Big  Muddy  Coal  &  Iron  Co., 
263  111.  480,  105  N.  E.  289.  Where  an  employer  rejects  the  Act,  he  loses  his 
right  to  set  up  the  common-law  defenses,  though  the  employe  does  not  elect  to 
come  under  the  Act.  Snykus  v.  Big  Muddy  Coal  &  Iron  Co.  (1914)  190  111. 
App.  602 ;   Favro  v.  Superior  Coal  Co.  (1914)  188  111.  App.  203. 

8  0  The  act  induces  its  acceptance  by  depriving  an  employer  of  more  than  five, 
who  refuses  to  accept  its  terms,  of  the  three  common-law  defenses,  contribu- 
tory negligence,  assumption  of  risk,  and  fellow  servant.  This  deprivation  is 
"merely  a  declaration  of  the  Legislature  of  the  public  policy  of  the  state  in 
that  regard."  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245;  Deibeikis 
V.  L.  Belt  Co.,  261  111.  454,  464,  104  N.  E.  211,  215,  Ann.  Cas.  1915A,  241.  Where 
neither  party  accepts  part  B,  or  when  the  employe  accepts  and  the  employer 
refuses  to  accept  it,  the  common-law  defenses  are  not  available  to  an  employer 
.  who  has  more  than  five  employes,  but  are  available  to  those  having  less  than 
that  number.    Bayon  v.  Beckley,  89  Conn.  154,  93  Atl.  139. 

The  defense  of  assumed  risk  is  not  denied  to  a  nonsubscribing  employer 
who  does  not  have  in  his  service  more  than  five  employes,  and  is  not  available 
to  employers  who  have  in  their  employment  more  than  five  employes.  Hodges 
v.  Swastika  Oil  Co.  (Tex.  Civ.  App.)  185  S.  W.  369. 

81  See  §  18,  ante. 


§  25  workmen's  compensation  112 

represent  no  vested  rights,  and  may  be  abolished  by  the  Legisla- 
ture. 

Some  Acts,  instead  of  entirely  abolishing  the  defense  of  contribu- 
tory negligence,  establish  the  doctrine  of  comparative  negligence. ^^ 

An  Act,  such  as  that  of  Wisconsin,  which  abolishes  the  defense 
of  assumption  of  risk,  but  not  contributory  negligence,  makes  it 
important  to  distinguish  between   these  two  defenses.®^     Within 

82  An  employer,  not  having  elected  to  come  within  the  Act,  could  not  avail 
himself  of  the  defenses  of  assumption  of  risk  and  contributory  negligence, 
save  in  mitigation  of  damages.  Spottsville  v.  Western  States  Portland  Cement 
Co.  (1915)  94  Kan.  2.j8,  14G  Tac.  3.jG  (Acts  1911,  c.  218,  §  S).  Contributory 
negligence  may  be  considered  in  reduction  of  damages  in  common-law  action. 
French  v.  Clover  Ix^af  Mining  Co.  (1914)  190  111.  Api).  400.  Contributory  neg- 
ligence would  not  defeat  recovery,  but  would  merely  diminish  the  damages 
recoverable.  Memphis  Cotton  Oil  Co.  v.  Tolbert  (Tex.  Civ.  Ajip.)  171  !S.  W. 
309. 

83  "So  far  as  the  decision  below  rests  upon  the  theory  that  the  defense  of 
negligence  of  a  fellow  servant  was  available  under  section  181G,  Statutes, 
it  is  wrong.  The  statute  was  superseded  by  the  Workmen's  Coniitensation  Act. 
So,  if  appellant  was  injured  by  negligence  of  his  associate,  respondent  is  liable 
unless  contributory  negligence,  strictly  speaking,  on  his  part — inadvertence, 
as  distinguished  from  assumption  of  risk — proximately  contributed  to  produce 
the  injury."  Salus  v.  Great  Northern  Ky.  Co.,  157  Wis.  546,  147  N.  W.  1070. 
In  any  action  founded  upon  negligence,  brought  by  an  employe  or  his  personal 
representative  against  an  employer  to  recover  for  personal  injuries  or  death 
resulting  therefrom,  incurred  by  the  employe  in  this  state  while  engaged  in 
the  line  of  his  duty,  the  defense  of  assumption  of  risk  is  by  section  2394 — 1 
abolished.  By  this  statute  in  the  same  class  of  cases  the  so-called  fellow 
servant  defense  was  also  abolished  where  there  are  four  servants  or  more 
engaged  in  a  common  employment.  By  chapter  599,  Laws  of  1913,  the  defense 
of  contributory  negligence  was  in  the  same  class  of  cases  taken  away,  "when 
such  want  of  ordinary  care  was  not  willful."  One  effect  of  these  statutes 
is  to  make  it  more  than  formerly  necessary  to  distinguish  between  assumption 
of  risk  and  contributory  negligence.  Puza  v.  C.  Ileunecke  Co.,  158  Wis.  482, 
149  N.  W.  223.  From  the  viewpoint  of  their  effect  in  defeating  plaintifC's  re- 
covery, assumption  of  risk  and  contributory  negligence  were  formerly  very 
much  alike.  They  can  no  longer  be  considered  from  that  viewpoint,  because 
there  is  now  no  such  common  viewpoint  with  reference  to  cases  arising  after 
September  1,  1911,  and  before  June  30,  1913,  where  there  were  less  than  four 
employes  engaged  in  a  common  employment,  and  in  such  last-mentioned  cases 
where  there  were  more  than  four  employes  engaged  in  a  common  employment, 


I 


113  ELECTIVE   AND   COMPULSORY   COMPENSATION  §    25 

such  an  Act,  an  intended  and  continued  use  of  a  known  defective 
appliance  or  a  known  unsafe  place  by  the  employe  in  substantially 
the  same  way  as  the  employer  instructed  or  intended  it  should  be 
used  falls  under  the  definition  of  assumption  of  risk  and  is  not  to 
be  considered  contributory  negligence.^*  Thus,  an  employe's  use 
of  a  visibly  defective  stepladder  pursuant  to  his  employer's  com- 
mands constitutes  assumption  of  risk,  rather  than  contributory  neg- 
ligence ;  but  where  he  uses  the  ladder  in  a  way  which  may  not  be 
required  in  the  exercise  of  ordinary  prudence  to  carry  out  his  em- 
ployer's instructions,  and  the  evidence  leaves  in  doubt  this  ques- 
tion, and  also  the  question  whether  such  use  of  the  ladder  contribut- 
ed to  the  injury,  such  questions  are  for  the  jury.^^  That  a  penalty 
imposed  for  violation  of  an  Act  is  to  be  paid  into  the  state  treas- 
ury does  not  make  the  violation  criminal  within  the  case  holding 
that,  "when  the  violation  of  a  statute  designed  to  protect  persons 
against  bodily  injuries  is  made  a  criminal  ofifense,  such  violation 
should  be  classed  with  gross  negligence,"  and  the  guilty  person 
held  liable  for  injuries  to  others,  regardless  of  the  contributory  neg- 
ligence of  the  person  injured.^"  It  does  not,  therefore,  take  away 
the  defense  of  contributory  negligence.^^ 

An  accepting  employer  does  not  waive  his  statutory  right  to  the 
common-law  defenses  of  assumption  of  risk,  negligence  of  a  fellow 

but  where  there  was  willful  want  of  ordinary  care  on  the  part  of  the  injured 
employe.  Under  such  statutes  the  effect  of  assumption  of  risk  and  that  of 
contributory  negligence  on  the  plaintiff's  right  of  recovery  are  dissimilar. 
It  would  be  rash  to  attempt  to  indicate  in  a  single  decision  all  the  points  of 
difference  between  assumption  of  risk  and  contributory  negligence,  or  to 
attempt  to  set  limits  to  the  meaning  of  the  expression  'want  of  ordinary  care 
not  willful.' "    Id. 

84  Puza  V.  C.  Hennecke  Co.,  158  Wis.  482,  149  N.  W.  223. 

85  (St.  1913,  §  2394—1  and  Laws  1913,  c.  599)  Id. 

86  Besnys  v.  Herman  Zehrlaut  Leather  Co.,  157  Wis.  .203,  147  N.  W.  37, 
citing:  Pizzo  v.  Wiemann,  149  Wis.  235,  134  N.  W.  899,  38  L.  R.  A.  (N.  S.)  678, 
Ann.  Cas.  1913C,  803;  Pinoza  v.  Northern  Chair  Co.,  152  Wis.  473,  140  N. 
W.  84. 

87  Besnys  v.  Herman  Zohrlaut  Leather  Co.,  supra. 

HON.COMP. — 8  1^ 


§  25  workmen's  compensation  114 

servant,  and  contributory  negligence,  by  objecting  to  the  employe's 
having  the  benefit  of  the  Wisconsin  Act.*^ 

The  provision  of  the  Massachusetts  Act  that  it  shall  not  be  a 
defense  that  the  employe  has  assumed  the  risks  of  the  injur}^  has 
no  application  to  a  contractual  assumption  of  risk;  i.  e.,  a  risk 
assumed  by  the  employe  by  virtue  of  his  contract  of  employment, 
as  distinguished  from  a  voluntary  assumption  of  risks  outside  those 
assumed  under  the  contract  of  employment,  as,  for  instance,  the 
employer's  failure  to  furnish  safe  tools  and  appliances.  This  arises 
from  the  the  fact  that  the  contractual  assumption  of  risk  is  not  a 
defense,  and  that  with  reference  to  such  risks  the  employer  owes 
no  duty  and  cannot  be  guilty  of  negligence.®^ 

A  workman,  whose  injury  was  due  wholly  to  his  own  negligence, 
cannot  recover  under  the  West  \^irginia  Act  against  an  employer 
who  has  not  elected  to  pay  premiums.^*'  But  a  declaration  in  an 
action  against  an  employer  who  has  not  elected  to  pay  premiums 
is  good,  where  its  allegations  show  that  the  injury  directly  result- 
ed from  the  negligence  of  some  employe  or  officer  other  than  plain- 
tiff, or  resulted  from  the  negligence  of  such  other  combined  with 
his  own.®^ 

Elective  compensation  depends,  not  upon  the  negligence  of  the 
employer  as  is  the  case  where  there  has  been  no  election  and  it  is 
sought  to  recover  compensation  by  action  at  law,*^  but  rests  upon 

8  8  Karny  v.  Northwestern  Malleable  Iron  Co.  (1915)  160  Wis.  316,  151  N. 
W.  7S6. 

89  (St.  1911,  c.  751,  §  1)  Ashton  v.  Boston  &  Me.  R.  Co.,  222  Mass.  65,  109 
N.  E.  820,  L.  R.  A.  1916B,  12S1.  An  experienced  workman  employed  to  repair 
defects  in  an  electric  wire  system  assmned  the  risks  arising  out  of  such  de- 
fects.    (St.  1911,  c.  751,  §  1)     Id. 

80  (Wk.  Comp.  Act,  §  26  [Code  1913,  c.  15P,  §  26  (sec.  6S2)])  Watts  v.  Ohio 
VaUey  Electric  Ry.  Co.  (W.  Va.)  SS  S.  E.  659. 

Slid. 

0  2  See  §  4,  ante.  Where  the  employer  has  not  brought  himself  under  the 
Act,  he  is  not  liable  for  accidents  attributable  to  the  negligence  of  no  one. 
Salus  V.  Great  Northern  R.  Co.,  157  Wis.  546,  147  N.  W.  1070. 


115  ELECTIVE   AND   COMPULSORY  COMPENSATION  §    25 

the  simple  fact  of  the  relationship  of  employer  and  employe.^^  Un- 
der the  Washington  Act,  employers  who  have  not  contributed  to 
the  state  insurance  fund  are  deprived  of  the  common-law  defenses, 
and  it  would  seem  that  the  only  effective  defense  available  in  an 
action  for  damages  for  an  alleged  injury  occurring  to  an  employe 
in  the  course  of  his  employment  would  be  that  no  injury  in  fact 
had  been  sustained,  or  that  the  injury  received  was  self-inflicted, 
or  that  the  employer  was  himself  free  from  fault.  The  amount  of 
the  recovery  should  be  determined  by  the  "comparative  negligence" 
of  all  parties.''* 

The  provision  of  the  Iowa  Act  which'establishes  the  presumption 
that  the  injury  resulted  from  the  negligence  of  an  employer  who 
has  rejected  the  Act  does  not  abolish  the  defense  of  contributory 
negligence,  but  merely  places  on  the  employer  the  burden  of  affirm- 
atively showing  that  he  was  without  fault,^^  nor  does  it  preclude 
the  employer  from  proving  want  of  negligence.^^ 

The  burden  of  proving  that  the  workman  was  contributorily 
negligent,  and  that  such  negligence  was  willful,  so  as  to  relieve 
from  liability  his  employer,  who  has  not  accepted  the  Michigan 
Act,  rests  on  the  employer.^'^ 

93  American  Radiator  Co.  v.  Rogge,  86  X.  J.  Law,  4.36,  92  Atl.  85,  94  Atl.  85. 

94  (Wk.  Comp.  Act  Wash.  §  8)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  19. 

9  5  An  employer  who  has  rejected  the  Act  has  the  burden  of  proving  that 
the  employe  was  willfully  negligent  with  intent  to  cause  his  own  injury,  or 
that  the  injury  was  due  to  the  employe's  intoxication,  and  that  the  injury  did 
not  result  from  the  employer's  negligence.  Hunter  v.  Colfax  Consol.  Coal  Co. 
(Iowa)  157  N.  W.  145.  Where  an  employer  elects  to  reject  the  provisions  of 
the  Act,  there  is  a  presumption  raised  that  the  employe's  injury  grew  out  of 
and  resulted  directly  and  proximately  from  the  negligence  of  the  employer. 
(Code  Supp.  1913,  tit.  12,  c.  8a)  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915) 
p.  3. 

9  6  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037. 

9  7  Freeman  v.  East  Jordan  &  S.  R.  Co.  (Mich.)  158  N.  W.  204. 


§  26  workmen's  compensation  116 

CHAPTER  III 

PERSONS   AND   FUNDS   LIABLE   FOR   COMPENSATION 

Section 

26-31.    Article  I. — Employers,  principals,  and  contractors. 

32—40.     Article  II. — Insurers  and  funds. 

41-48.    Article  III. — Third  persons  (indemnity  and  subrogation). 


ARTICLE  I 

EMPLOYERS,  PRINCIPALS,  AND  CONTRACTORS 

Section 

26.  Primary  liability — Who  liable  as  employers. 

27.  Which  of  two  employers  liable. 

28.  Municipal  corporations. 

29.  Contemporaneous  employment  by  different  employers. 

30.  Principals  and  contractors. 

31.  Principal  and  agent. 

§  26.     Primary  liability — Who  liable  as  employers 

The  employer,  being  the  person  with  whom  the  injured  employe 
has  contracted,  is  the  person  who  is  primarily  liable,  or  who  must 
provide  the  fund  out  of  which  compensation  must  be  paid.  He  is 
not  relieved  from  liability,  even  though  he  provides  insurance  in  a 
private  company  under  an  Act  authorizing  only  such  insurance  ; 
the  purpose  of  the  insurance  being  to  insure  certain  and  prompt 
payment,  and  to  rerimburse  him  for  any  and  all  amounts  which  he 
has  so  paid.  He  remains  primarily  liable,^  and,  if  the  insurance 
company  becomes  insolvent,  the  fact  that  he  insured  will  not  relieve 
him  from  liability  to  pay  compensation.^ 

1  (Acts  35th  Gen.  Assem.  c.  147,  Code  Supp.  1913,  §§  2477m46-2477m48) 
Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  3. 

2  Id.  p.  35. 


I 


117  PERSONS   AND   FUNDS   LIABLE  §    26 

The  word  "employer"  is  defined  by  many  of  the  Acts.  As  used 
in  the  Illinois  Act  it  does  not  include  a  farmer,^  or  an  automobile 
owner  who  has  not  elected  to  accept  the  provisions  of  the  Act.* 
As  used  in  the  Ohio  Act  in  reference  to  private  employment,  it 
means  every  person,  firm,  and  private  corporation,  including  any 
public  service  corporation,  that  has  in  its  service  five  or  more  work- 
men or  operatives,  regularly  in  the  same  business,  or  in  or  about 
the  same  establishment,  under  any  contract  of  hire,  express  or  im- 
plied, oral  or  written.^  As  used  in  the  Washington  Act,  it  includes 
owners,  contractors,  subcontractors,  agents,  and  municipalities,^ 
but  not  the  United  States,  though  it  is  in  fact  the  employer.^     A 

3  Wbere  a  person  was  engaged  to  help  a  farmer  deliver  a  threshing  machine 
to  the  shop  for  the  purpose  of  having  it  repaired  and  on  the  way  the  machine 
stopped,  and  the  employ^  crawled  over  the  top  of  the  engine,  when  it  sud- 
denly started,  throwing  him  to  the  ground,  ran  over  and  killed  him,  the  em- 
ployer, being  a  farmer,  was  not  liable,  as  he  did  not  come  within  the  Act. 
Poling  V.  Brown,  Bulletin  No.  1,  111.,  p.  21.  One  working  for  a  farmer  in  the 
occupation  of  running  a  threshing  machine  that  is  operated  by  belt  and  pul- 
leys, or  corn  shellers  operated  in  the  same  way,  who  is  injured  while  in  such 
employment,  is  not  entitled  to  compensation,  as  not  coming  within  Work- 
men's Compensation  Act.    Benton  v.  Wilson,  Bulletin  No.  1,  111.,  p.  54. 

4  There  is  but  one  way  a  private  automobile  owner  may  come  within  the 
Workmen's  Compensation  Act  of  Illinois ;  that  is,  by  notifying  the  Industrial 
Board  of  his  election  to  accept  the  provisions  of  the  Act.  Nelson  v.  Fitzgerald, 
Bulletin  No.  1,  111.,  p.  95.  Where  an  employe,  primarily  engaged  as  a  private 
chauffeur  by  the  president  of  a  railway  company,  and  paid  out  of  his  employ- 
er's private  funds,  while  driving  the  automobile  owned  by  the  employer,  met 
with  an  accident  and  was  killed,  the  beneficiary  was  not  entitled  to  compen- 
sation.   Id. 

5  (Wk.  Comp.  Act,  1913,  §  13,  par.  2)  Clements  v.  Columbus  Sawmill  Co.,  vol. 
1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  161. 

A  corporation  owning  and  operating  a  sawmill  not  in  operation  on  all  of 
the  working  days  of  the  year,  but  requiring  when  in  operation  five  or  more 
workmen  to  operate  it,  is  an  "employer."  Clements  v.  Columbus  Sawmill 
Co.,  vol.  1,  No,  7,  Bui.  Ohio  Indus.  Com.  p.  161.  A  partnership  is  an  "em- 
ployer." (Wk.  Comp.  Act,  §  13,  par.  2)  In  re  Cooper,  vol.  1,  No.  7,  Bui.  Ohio 
Indus.  Com.  p.  180. 

6  (Wk.  Comp.  Act  Wash.  §  3)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  5. 

7  (Wk.  Comp.  Act  Wash.  §  3)  Op.  Wash.  Atty.  Gen.  Sept.  20,  1911. 


§  26  workmen's  compensation  118 

provision  making  the  state  an  "employer"  has  been  held  not  to 
make  an  employer  of  the  state  board  of  agriculture ;  ^  but  the  board 
of  trustees  of  the  University  of  Illinois  has  been  held  to  have  such 
legal  entity  under  the  law  as  to  be  included  within  this  term.^  Six 
corporations,  which,  acting  independently,  employed  a  watchman, 
did  not  constitute  a  "voluntary  association,"  within  a  provision  that 
the  definition  of  employer  shall  include  every  voluntary  association 
having  any  person  in  service  under  any  appointment  or  contract  of 
hire.^'' 

The  liability  of  one  as  an  employer  under  any  Act  depends  in 
the  first  place,  of  course,  upon  the  existence  of  the  relation  of  em- 
ployer and  employe,  determined  in  accordance  with  the  usual 
rules.^^    The  employer's  liability  is  not  affected  by  the  fact  that  the 

8  Agler  V.  Mich.  Agriculture  Col.,  181  Mich.  559,  148  N.  W.  341,  5  N.  C.  C.  A. 
897. 

9  North  V.  University  of  Illinois,  Bulletin  No.  1,  111.,  p.  63. 

10  (Wk.  Comp.  Act,  §  13)  Western  Metal  Supply  Co.  v.  Pillsbury  (Cal.)  156 
P.  491. 

Whether  or  not  the  relation  of  master  and  servant  exists  in  a  given  case, 
under  oral  contract,  is  often  a  question  of  fact,  or  of  mixed  law  and  fact,  and 
is  to  be  proved  like  any  other  question.  'Puttie  v.  Embury-Martin  Lumber  Co. 
(Mich.)  158  N.  W.  875. 

11  A  chauffeur  employed  by  an  automobile  owner  is  not  in  the  employment 
of  the  proprietor  of  a  garage  where  the  automobile  is  kept,  where  such 
proprietor  incidentally  gives  him  opportunity  in  his  leisure  moments  to  aid  in 
the  sale  of  secondhand  automobiles  on  commission,  but  he  is  under  no  duty  to 
do  so,  nor  under  the  control  or  direction  of  the  proprietor.  Lane  v.  Herrick, 
3  Cal.  I.  A.  C.  Dec.  29. 

The  subscriber,  E.,  needing  financial  assistance,  entered  into  an  agree- 
ment with  one  A.  by  the  terms  of  which  the  latter  made  a  cash  deposit  of 
$3,500  to  assist  the  former  to  secure  a  certain  contract,  and  also  agreed  to 
furnish  another  sum  to  enable  E.  to  fulfill  the  contract.  When  the  contract 
was  completed,  A.  was  to  be  reimbursed  and  given  a  share  of  the  profits.  All 
the  employes  were  hired  by  E.  The  employ^  S.  received  a  personal  injury 
arising  out  of  and  in  the  course  of  his  employment,  and  the  insurer  of  E. 
denied  liability.  It  was  held  that  S.  was  an  employ^  of  E.  Schuman  v.  Em- 
ployers' Liability  Assur.  Corp.  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  599  (Decision 
of  Com.  of  Arb.,  afiirmed  by  Indus.  Ace.  Bd.). 

A  vessel  was  chartered  under  an  oral  agreement  by  which  a  second  party 


119  PERSONS  AND   FUNDS   LIABLE  §    26 

employe  worked  but  a  short  time  before  the  injury, ^^  or  was  em- 
ployed and  paid  through  an  agent/^  or  that  he  has  a  contract  with  a 
third  person,  by  virtue  of  which  compensation  will  eventually  fall 

gave  directions  as  to  the  times  and  places  at  which  the  work  was  to  be  car- 
ried on,  but  the  handling  and  management  of  the  vessel  was  under  the  con- 
trol of  the  owner,  and  he  was  responsible  for  lost  or  destroyed  goods.  A  cap- 
tain of  the  vessel  in  the  general  employ  of  the  owning  company  as  captain 
was  its  employe  in  this  instance.  Norman  v.  Empire  Lighterage  &  Wrecking 
Co.,  2  N.  Y.  St.  Dep.  Rep.  480.  Where  the  architect  in  general  supervision  over 
the  consti-uction  of  a  building  recommended  claimant  as  a  superintendent  to 
the  owner  of  the  building,  the  fact  that  the  architect  made  some  arrangement 
with  the  owner  whereby  he  paid  a  part  at  least  of  the  claimant's  wages  did 
not  make  him  an  employe  of  the  architect,  where  his  duties  had  nothing  to  do 
with  the  architect's  work.  Dissosway  v.  Jallade,  The  Bulletin,  N.  Y.,  vol. 
1,  No.  6,  p.  13. 

Co-operative  creamery. — Farmers'  co-operative  creamery  companies  are  em- 
ployers, and  must  provide  insurance  or  be  relieved  from  so  doing.  (Code  Sup. 
1913,  §§  2477m41,  2477m49)  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  13. 

Hospital. — The  Iowa  Act  applies  to  and  includes  charitable  institutions 
such  as  public  hospitals.  Op  sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  13. 
A  nurse,  accidentally  injured  while  caring  for  a  patient  to  whom  she  has  been 
assigned  by  the  hospital,  can  look  to  the  hospital  as  her  employer,  though  it 
was  customary  to  make  a  special  charge  to  the  patient  for  the  nurse,  and  only 
pay  that  amount  to  the  nurse  when  it  had  been  paid  by  the  patient.  William- 
son V.  St.  Catherine's  Hospital,  2  Cal.  1  A.  C.  Dec.  430. 

Labor  union,  and  individu<t>l  memhers. — Where  a  janitor  belonging  to  the 
Central  Labor  Council,  a  union  of  workingmen,  was  accidentally  injured  while 
working  for  such  labor  union,  he  was  entitled  to  an  award  for  disability  com- 
pensation against  it.  Gerber  v.  Central  Council  of  Stockton,  2  Cal.  I.  A.  C. 
Dec.  580.  Where  a  janitor  of  an  unincorporated  association  is  accidentally  in- 
jured and  the  claim  is  made  that  where  such  association  has  no  funds  the  in- 
dividual membership  liability  is  such  that  an  award  made  against  it  would 
avail  nothing,  the  members  of  the  association  cannot  avoid  personal  liability. 
If  so,  a  wide  door  would  be  opened  for  avoiding  responsibility  where  the  pub- 
lic interest  requires  that  responsibility  exist.    Id. 

12  Although  a  workman  had  worked  but  two  days  before  he  was  injured, 
he  was  an  employ^  within  the  Act.  Lysons  v.  Knowles  (Andrew)  &  Sons, 
Ltd.  (1901)  3  W.  C.  C.  I.  1,  H.  L.  The  fact  that  a  workman  who  was  killed 
by  accident  had  only  worked  four  days  did  not  disentitle  his  dependents  to 
compensation.  Stuart  v.  Nixon  &  Bruce  (1901)  2  W.  C.  C.  101,  104,  C.  A.  (Act 
of  1897). 

13  See  §  31,  post. 


§  26  workmen's  compensation  120 

on  such  third  person ;  ^*  nor  does  he  cease  to  be  an  employer  be- 
cause he  temporarily  lends  or  hires  the  workman's  services  to  an- 
other, though  such  other  person  pays  the  wages, ^^  particularly 
where  the  workman  remains  under  the  directions  of  the  former.^^ 
But  the  sending  of  a  workman  to  another  by  one  who  has  not  first 
employed  him  does  not  constitute  a  hiring,^^  nor  does  work  done 
for  another  than  his  employer  by  a  workman  solely  on  his  own  re- 
sponsibility.^^ 

14  Where  an  employ^,  on  the  pay  roll  of  the  defendant,  was  working 
on  its  premises  when  injured,  doing  work  which  was  part  at  least  in  its  in- 
terest, and  under  its  foreman,  he  was  entitled  to  compensation  from  the  de- 
fendant, although  it  had  a  contract  with  another  company  under  the  terms  of 
which  it  was  possible  that  the  compensation  might  eventually  fall  upon  that 
company.  Had  he  so  chosen,  he  might  have  held  that  company  under  the 
terms  of  its  contract,  but  he  could  not  be  compelled  to  have  recourse  to  them 
for  compensation,  since  he  had  no  knowledge  of  their  relation  to  his  work 
and  was  an  employe  of  the  defendant.  Gallagher  v.  New  York  Central  R.  R. 
Co.,  The  Bulletin,  N.  Y.,  Vol.  I,  No.  11,  p.  21. 

15  Where  the  respondents  hired  a  thi-eshing  machine  to  farmers,  and  em- 
ployed two  men  to  take  care  of  the  machine  and  a  third  as  road  man,  and 
this  latter  workman  was  injured  while  helping  with  the  threshing,  which  he 
commonly  did,  and  for  which  he  was  paid  by  the  farmer,  he  was  nevertheless 
in  the  employment  of  the  respondents.  Reed  v.  Smith,  Wilkinson  &  Co.  (1910) 
3  B.  W.  C.  C.  223,  C.  A.  Where  a  charter  party  required  the  registered  own- 
er of  the  tug  to  provide  and  pay  two  men  as  crew,  and  one  of  them 
was  drowned,  he  was  in  the  employ  of  the  owner,  not  of  the  charterer. 
Mackinnon  v.  Miller  (1910)  2  B.  W.  C.  C.  64,  Ct.  of  Sess. 

16  An  employer,  after  engaging  a  man  to  work  at  an  oil  well,  permitted  him 
to  aid  in  the  installation  of  machinery  for  another.  While  such  installation 
was  delayed,  the  workman  was  killed  from  an  explosion,  he  being  at  the  time 
engaged  in  the  work  of  installation,  but  under  the  general  control  and  direc- 
tion of  his  employer.  It  was  held  that  the  employer  remained  such  at  the 
time  of  the  accident  and  was  liable.  Walker  v.  Santa  Clara  Oil  &  Develop- 
ment Co.,  2  Cal.  I.  A.  C.  Dec.  1. 

17  Where  a  workman  who  hired  out  among  the  farmers,  on  applying  to  one, 
was  sent  on  by  him  to  another,  who  had  asked  the  first  to  loan  him  a  man 
for  threshing,  the  services  were  not  lent  or  hired  by  the  first  farmer.  Bos- 
well  V.  Gilbert  (1910)  2  B.  W.  C.  C.  251,  C.  C. 

18  Where  a  stage  hand  made  a  business  of  contracting  with  theatrical  com- 
panies to  haul  their  baggage,  and  was  given  early  information  of  their  move- 


121  PERSONS   AND  FUNDS   LIABLE  §    27 

A  receiver,  conducting  a  business  of  the  employer  corporation,  is 
bound  to  pay  the  compensation  for  which  the  corporation  became 
liable  prior  to  his  appointment;  the  obligation  being  contractual, 
and  the  compensation  being  in  legal  effect  indistinguishable  from 
wages,  and  the  payments  made  by  the  receiver  being  properly 
classed  as  operative  or  administrative  expenses.^®  A  workman, 
hired  by  a  partnership  the  management  of  which  is  later  taken 
over  by  a  creditor  who,  in  consideration  of  paying  off  an  attach- 
ment, is  given  a  power  of  attorney  and  assumes  the  management 
and  takes  over  the  tangible  assets  for  the  purpose  of  securing  him- 
self and  rehabilitating  the  firm,  the  actual  administration  of  the 
business  being  still  continued  by  the  original  partners,  is  employed 
by  the  partnership  and  not  by  the  creditor.^" 

Failure  to  guard  a  saw  in  compliance  with  statutory  safety  reg- 
ulations will  not  take  a  corporation  out  from  under  the  Illinois  Act, 
unless  it  be  shown  that  the  failure  was  intentional  on  the  part  of 
some  elective  officer  of  the  corporation.^^ 

§  27.     Which  of  two  employers  liable 

In  determining  whether,  in  the  doing  of  a  particular  act,  a  work- 
man is  the  servant  of  his  original  master  or  of  the  person  to  whom 
he  has  been  furnished,  the  general  test  is  whether  the  act  is  done 
in  business  of  which  the  person  is  in  control  as  a  proprietor,  so  that 
he  can  at  any  time  stop  it  or  continue  it,  and  determine  the  way  in 
which  it  shall  be  done,  not  merely  in  reference  to  the  result  to  be 

ments  by  the  lessee,  so  that  he  might  do  this,  his  services  were  not  lent,  but 
he  was  an  independent  contractor.  Huscroft  v.  Bennett  (1914)  7  B.  W.  C. 
C.  41,  C.  A. 

19  (N.  J.  Emp.  Liab.  Act,  P.  L.  1911,  p.  134,  §  2,  par.  8)  Wood  v.  Camden 
Iron  Works  (D.  C.)  221  Fed.  1010. 

20  Maffia  V.  Aquilino,  3  Cal.  I.  A.  C.  Dec.  15. 

21  Burnes  v.  Swift  &  Co.  (1914)  186  111.  App.  460. 


§  27  workmen's  compensation  122 

reached,  but  in  reference  to  the  method  of  reaching  the  result.^^ 
Thus  it  has  commonly  been  held,  in  cases  where  a  horse  and  driver 
have  been  let  by  a  general  employer  into  the  service  of  another,  that 
the  driver  is  subject  to  the  control,  and  therefore  is  the  agent,  of  his 
general  employer  as  to  the  care  and  management  of  the  horse  and 
vehicle. ^^  That  one  pays  a  workman  his  wages,  exercises  super- 
vision over  his  work,  selects  the  workmen,  and  has  power  to  dis- 
miss him,  though  matters  proper  to  consider,  do  not  necessarily 
determine  that  he  is  the  employer.^* 

22  Pigeon  V.  Employers'  Liability  Assur.  Corporation,  216  Mass.  51,  102  N. 
E.  932,  Ann.  Cas.  1915A,  737;  Knowlton,  C.  J.,  in  Shepard  v.  Jacobs,  204 
Mass.  110,  90  N.  E.  392,  393,  26  L.  R.  A.  (N.  S.)  442,  134  Am.  St.  Kep.  648. 

In  Grischuck  v.  S.  Borden  &  Co.,  1  Conn.  Comp.  Dec.  633  (affirmed  by  supe- 
rior court  on  appeal),  wbere  the  deceased  workman  had  been  employed  as  a 
day  laborer  at  odd  jobs  by  the  respondent  for  a  number  of  years,  and  on  the 
day  of  the  injury  was  loaned  by  him  to  another  firm  for  the  purpose  of 
making  repairs  in  an  elevator  used  by  them  in  their  business,  the  employer 
was  held  liable  to  the  dependent  widow,  and  the  firm  to  whom  he  was  loaned 
was  released  from  liability. 

2  3  Pigeon  V.  Employers'  Liability  Assur.  Corporation  (Mass.)  supra,  sup- 
ported by  Shepard  v.  Jacobs,  204  Mass.  110,  90  N.  E.  392,  26  L.  R.  A.  (N.  S.) 
442,  134  Am.  St.  Rep.  648;  Hussey  v.  Franey,  205  Mass.  413,  91  N.  E.  391, 
137  Am.  St.  Rep.  460 ;  Corliss  v.  Keown,  207  Mass.  149,  93  N.  E.  143 ;  Wal- 
dock  V.  Winfield  [1901]  2  K.  B.  596;  Hunt  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  212 
Mass.  102,  107,  98  N.  E.  787,  40  L.  R.  A.  (N.  S.)  778 ;  Rongo  v.  B.  Waddington 
&  Sons,  87  N.  J.  Law,  395,  94  Atl.  408. 

2  4  Pollard  V.  Goole  &  Hull  Steam  Towing  Co.,  Ltd.,  3  B.  W.  C.  C.  366,  C.  A. 

Where  a  lumber  company  requested  a  transfer  company  to  supply  teams 
and  drivers  for  $5.50  a  day,  and  the  transfer  company  called  upon  a  contract 
teamster  to  supply  a  team  and  driver  at  $5  a  day,  and  the  contract  teamster 
directed  a  driver,  regularly  employed  by  him  at  $2.50  a  day,  to  take  his  team 
for  work  at  the  lumber  company's  yard,  and  there  the  driver  hitched  his 
team  to  a  wagon  of  lumber  supplied  by  the  lumber  company  and  hauled  it 
away,  the  loading  and  designation  of  place  being  under  the  direction  of  the 
lumlier  company  and  the  control  over  details  and  power  to  discharge  residing 
in  the  contract  teamster,  the  "employer"  was  the  contract  teamster,  and  he 
was  primarily  liable  for  compensation  for  injury  sustained  by  the  driver  while 
doing  such  driving.     McLeod  v.  Kirkpatrick,  3  Cal.  I.  A.  C.  Dec.  19. 

Wages. — Where  a  section  boss  requests  his  men  to  assist  a  rancher  to  fight 
a  fire  from  which  the  railroad  was  not  in  danger,  and  the  rancher  hires  and 


123  PERSONS  AND   FUNDS   LIABLE  §    27 

Workmen  engaged  in  mining  coal  are  employes  of  the  mine 
owner,  though  the  mining  operations  are  carried  on  under  a  con- 
pays  the  men,  the  rancher,  not  the  railroad,  is  the  employer.  Mazzini  v.  Pa- 
cific Coast  Ry.,  2  Cal.  I.  A.  C.  Dec.  962.  Where  a  golf  club  authorizes  a  boy  to 
act  as  caddie  for  members  playing  on  its  links,  on  condition  that  he  be  under 
the  direction  of  the  club's  caddie  master  and  that  the  power  to  reduce  wages, 
reprimand,  suspend,  or  discharge  lies  with  the  club ;  that  the  caddie  report 
to  the  caddie  master  upon  arriving  at  the  links  each  day,  and  stay  in  the  cad- 
die house  until  called  for,  the  rate  of  his  pay  being  fixed  by  the  club,  although 
paid  by  the  individual  player,  such  rate  of  pay  not  to  be  exceeded  in  any 
case,  and  the  presence  of  caddies  upon  the  links  is  secured  by  the  club  to 
make  the  links  more  valuable  to  members,  the  boy  is  an  employe  of  the  club, 
and  not  of  the  member  whom  he  may  be  serving  when  injured.  Harris  v. 
Claremont  Country  Club,  2  Cal.  I.  A.  C.  Dec.  1047.  Where  one  who  has  agreed 
to  furnish  labor  and  material  to  repair  a  machine  in  consideration  of  a  per 
cent,  of  the  profits  in  addition  to  a  payment  to  be  made,  calls  in  the  service 
of  an  employe  of  the  owner  of  the  machine,  to  superintend  and  assist  in 
the  repair  work,  and  such  employe  is  paid  by  the  repairer  as  agreed,  such 
employs  is  an  employe  of  the  repairer  and  not  of  the  owner  of  the  machine. 
Younger  v.  Gilro  Machine  Co.,  2  Cal.  I.  A.  C.  Dec.  908.  Where  the  appoint- 
ment and  amount  of  pay  of  a  workman  hired  by  a  board  of  guardians  was 
subject  to  the  approval  of  the  Local  Government  Board,  he  was  notwithstand- 
ing in  the  employ  of  the  guardians. 

In  lacovazzi  v.  Coppolo,  1  Conn.  Comp.  Dec.  476,  where  the  workman  at 
the  time  of  his  injury  was  working  for  the  benefit  of  a  firm  of  plumbers,  to 
whom  he  had  been  assigned  by  the  respondent  under  a  contract  between  re- 
spondent and  the  plumbers,  but  was  paid  his  wages  by  the  respondent,  he 
was  in  respondent's  employ.  In  Brady  v.  Grove,  1  Conn.  Comp.  Dee.  240, 
where  the  employ^  was  engaged  in  creosoting  a  building  built  by  one  re- 
spondent, who  was  a  building  contractor,  upon  land  owned  by  him,  and  was 
paid  by  him,  though  he  worked  under  the  immediate  supervision  of  another 
respondent  who  acted  as  superintendent  and  foreman  for  the  first,  it  was 
held  the  workman  was  the  employe  of  the  former,  and  the  latter  was  dis- 
charged  from  liability.  In  Fiorio  v.  Ferrie,  1  Conn.  Comp.  Dec.  459,  where 
respondent  engaged  a  driver  and  his  team,  and  paid  him,  and  furnished  man 
and  team  for  a  price  per  day  to  the  city,  which  directed  his  work,  but  could 
not  discharge  him,  the  driver  working  sometimes  for  respondent  after  hours 
or  on  rainy  days,  when  he  was  not  needed  by  the  city,  and  being  occasionally 
hired  to  others,  he  was  an  employe  of  respondent  and  not  of  the  city.  In 
Sinner  v.  Town  of  Colchester,  1  Conn.  Comp.  Dec.  286,  where  claimant  was 
employed  by  a  supervisor  in  employ  of  the  town,  and  his  services  paid  for 
to  the  supervisor  by  the  town,  compensation  was  awarded  against  both  the 
supervisor  and  the  town,  and  the  question  of  which  of  the  two  was  properly 


§  27  workmen's  compensation  124 

tract  with  a  third  party,  who  selects  and  pays  the  workmen,  where 
the  mine  owner  has  reserved  control  and  supervision  over  the 
working  of  the  mine.^^ 

responsible  was  left  for  them  to  decide  among  themselves.  In  De  Palma  v. 
Home  Construction  Co.,  1  Conn.  Comp.  Dec.  358,  where  respondent  company 
employed  De  Palma  Bros,  to  build  its  houses,  they  in  turn  employing  any 
one  they  wanted  to  work  for  them,  keeping  the  time,  but  the  wages  being 
paid  by  respondent,  and  it  being  understood  that  respondent  could  dis- 
charge or  transfer  any  one  so  employed,  it  was  held  that  claimant,  a  broth- 
er of  the  De  Palma  Bros,  and  employed  by  them  under  this  arrangement, 
was  an  employe  of  the  respondent.  Where  on  a  rehearing  it  appeared  that 
the  claimant,  a  "shenango"  or  longshoreman  who  worked  by  the  day  for 
whoever  would  hire  him,  without  having  any  definite  contract  for  any  length 
of  time,  but  being  paid  each  night  and  being  free  to  work  for  whom  he 
pleased  the  next  day,  had  started  work  for  the  defendants,  but  later  was  sent 
to  work  for  another  company,  because  defendants  had  not  sufficient  men  to 
do  their  work,  and  other  men  sent  with  him  were  paid  by  the  latter  company, 
that  company  was  his  employer,  and  the  former  award  against  defendants 
was  rescinded.  Sala  v.  Martorella  &  Giannesi,  The  Bulletin,  N.  Y.,  Vol.  I, 
No.  6,  p.  11,  Finlay  v.  Tullamore  Guardians  (1914)  7  B.  W.  C.  C.  973,  C.  A. 
Where  a  workman  on  a  ship  received  his  pay  from  a  stevedore,  who  worked 
for  the  respondents  and  also  other  firms,  and  who  testified  that  he  handled 
the  money  merely  for  the  convenience  of  the  respondents,  the  workman  was 
in  respondent's  employ.  Pollard  v.  Goole  &  Hull  Steam  Towing  Co.,  Ltd. 
(1910)  3  B.  W.  C.  C.  366,  C.  A. 

Supervision. — Where  a  man  contracted  with  a  shipowner  to  clean  the  boil- 
ers of  a  vessel,  and  paid  the  men  he  got  to  do  it,  the  fact  that  they  were  to 
some  extent  supervised  by  the  shipowner's  foreman  did  not  make  them  his 
employes.  Spiers  v.  Eklerslie  Steamship  Co.,  Ltd.  (1910)  2  B.  W.  C.  C.  205, 
Ct.  of  Sess.  Where  a  ganger,  employed  by  a  firm  of  drug  grinders  to  unload 
for  them  a  barge  of  sulphur  and  to  carry  it  in  their  bags  into  their  ware- 
house, brought  his  own  gang,  and  divided  the  money  received  among  them, 
one  of  them  who  was  injured  was  not  in  the  employ  of  the  drug  firm.  Bob- 
bey  v.  Crosbie  (1915)  8  B.  W.  C.  C.  236,  C.  A.  Where  the  master  of  a  trad- 
ing schooner  was  killed,  it  was  the  managing  owner,  and  not  all  of  the  reg- 
istered owners,  who  was  liable.  Carswell  v.  Sharp  et  al.  (1910)  3  B.  W.  C. 
C.  552,  Ct.  of  Sess.  Where  a  workman  was  engaged  in  plating  in  a  ship- 
builders' 5^ard  as  a  member  of  a  squad,  in  which  he  was  placed  by  the  head 
of  the  squad,  but  with  the  consent  of  the  shipbuilders'  foreman,  this  squad 
working  the  regulation  hours  of  the  yard,  and  being  paid  by  the  shipbuilders 

2  5  Skinner  v.  Stratton  Fire  Clay  Co.,  vol.  I,  No.  7,  Bui.  Ohio  Indus.  Com.. 
p.  103. 


125  PERSONS  AND   FUNDS   LIABLE  §    28 

§  28.     Municipal  corporations 

The  Acts  usually  include  municipalities  when  they  become  em- 
ployers,^^   regardless    of   the    number    of   workmen    employed    by 

for  overtime,  having  the  shipbuilders'  foreman  as  overseer,  and  obeying 
printed  rules  "to  be  observed  by  the  workmen  in  the  employment  of"  the 
shipbuilders,  although  they  apportioned  their  work  as  they  liked,  and  paid 
for  their  own  unskilled  labor  when  needed,  the  man  working  in  this  squad 
was  in  the  employ  of  the  shipbuilders.  McCready  v.  Dunlop  &  Co.  (1900) 
2  F.  1027,  Ct.  of  Sess.  (Act  of  1897).  A.,  the  owner  of  a  coal  mine,  entered 
into  a  contract  with  B.  to  operate  the  mine,  by  the  terms  of  which  contract 

A.  was  to  furnish  all  posts,  timbers,  and  track  material  and  implements,  and 

B.  was  to  mine  the  coal  in  a  workmanlike  manner,  do  necessary  track  laying 
and  timbering,  preserve  the  entry  in  good  condition,  do  draining,  etc.,  and 
furnish  all  labor  necessary  for  the  mining  of  the  coal.  The  coal  was  to  be 
placed  in  A.'s  car  as  taken  from  the  mine,  and  B.  was  to  receive  from  A.  a 
stated  price  per  ton  for  all  coal  so  taken  from  the  mine,  it  being  part  of  the 
agreement  that  A.  was  to  take  and  pay  for  all  the  coal  so  mined.  The  min- 
ing was  done  subject  to  the  supervision  of  a  mine  foreman  employed  by  A. 

C.  was  employed  as  a  miner  in  the  mine  so  operated,  and  was  killed  while 
in  the  course  of  his  employment.  The  commission  held  that  C.  was  an  f>m- 
ploye  of  A.  McAllister  v.  National  Fireproofing  Co.,  vol.  1,  No.  7,  Bui.  Ohio 
Indus.  Com.  p.  107.  In  Soloski  v.  Strickland,  1  Conn.  Comp.  Dec.  56  r,  where 
the  respondent  engaged  another  man  to  cut  wood  on  his  lot  at  a  rate  per 
cord  under  certain  specifications,  and  this  third  party  hired  claimant,  mak- 
ing a  profit  on  his  work,  having  the  power  to  discharge  him  and  to  direct 

2  6  City  of  Butte  v.  Indus.  Ace.  Bd.  (Mont.)  156  Pac.  130  (Code  Supp.  1913, 
tit.  12,  c.  SA,  §  2477m [b])  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  pp.  7,  8. 

A  city  is  an  "employer."  (Wk.  Comp.  Act,  §  13,  par.  1)  In  re  Frances  E. 
Lyman,  vol.  I,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  182. 

The  city  of  Superior  was  liable  under  the  act  for  the  death  of  a  care- 
taker of  a  park  from  injuries  received  while  he  was  mowing  grass  in  the 
space  between  the  sidewalk  and  the  curb.  (St.  1913,  §  925 — 171a,  and  St. 
1913,  §  925—3)  City  of  Superior  v.  Industrial  Commission,  160  Wis.  511,  152 
N.  W.  151. 

Where  the  Act  applies  to  employers  "building  or  maintaining  any  struc- 
ture," a  municipal  corporation  which  operates  and  maintains  its  own  water 
system  is  an  employer  within  the  Act.  (Act  1911,  p.  314,  §  2;  Jones  &  A. 
Ann.  St.  1913,  par.  5450)  Brown  v.  City  of  Decatur,  188  111.  App.  147.  A  mu- 
nicipality, or  quasi  public  municipality,  such  as  the  Sanitary  District  of 
Chicago,  comes  within  the  Workmen's  Compensation  Act.  Radigen  v.  Sani- 
tary Dist.  of  Chicago,  Bulletin  No.  1,  111.,  p.  138. 


§  29  workmen's  compensation  126 

them,^^  and  supersede  charter  provisions  relative  to  presentation  of 
claims  against  a  city.^* 

§  29.     Contemporaneous     employment     by     different     em- 
ployers 

Employment  by  more  than  one  employer  at  the  same  time  does 
not  prevent  recovery  of  compensation.  Thus  the  fact  that  deceased 
was  employed  in  the  dual  capacity  of  employe  of  the  defendant  and 
of  the  United  States  government  did  not  make  him  any  the  less  an 
employe  of  defendant ;  the  applicant  having  a  right  to  elect  which 
of  the  employers  to  proceed  against.^^  Likewise  the  fact  that  a 
night  watchman  is  contemporaneously  employed  by  several  owners 
of  buildings  does  not  prevent  him  from  being  the  employe  of 
each.^^     In  the  absence  of  any  joint  agreement  among  them,  such 

what  trees  should  be  cut,  claimant  was  not  an  emploj-6  of  the  respondent, 
but  of  the  contractor. 

Selection. — ]\Ien  for  measuring  and  weighing  cargo,  licensed  by  a  port  au- 
thority, were  sent  out  in  turn  as  called  for  by  shipowners,  and  the  charges 
per  ton,  which  were  collected  by  the  headman,  were  divided,  after  taking  out 
certain  expenses  of  the  port  authority,  between  hircself  and  the  workmen. 
One  of  these  meters,  who  was  injured,  was  in  the  employ  of  the  shipowner. 
Wilmerson  v.  Lynn  &  Hamburg  Steamship  Co.  (1913)  6  B.  W.  C.  C.  542,  C.  A. 

Dismissal. — Although  the  foreman  of  a  squad  of  coal  trimmers,  working 
on  coal  which  a  firm  of  shipping  agents  were  loading  on  a  ship,  had  the 
power  to  dismiss  the  men,  and  was  appointed  by  the  harbor  commissioners, 
one  of  the  squad  who  was  injured  was  in  the  employ  of  the  firm,  which 
prepared  the  plan  by  which  the  work  was  done,  and  which  controlled  and 
supervised  the  work.  Gorman  v.  Gibson  &  Co.  (1910)  S.  C.  317,  47  S.  L.  R. 
394. 

2  7  Countries,  cities,  townships,  incorporated  villages,  and  school  districts 
are  employers  within  the  meaning  of  the  Ohio  Act,  regardless  of  the  num- 
ber of  workmen  employed  by  them.  (Wk.  Comp.  Act,  §  13)  In  re  Horvat, 
vol.  I,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  155. 

28  (Wk.  Comp.  Act  Ex.  Sess.  1912,  pt.  6,  §  5)  Purdy  v.  City  of  Sault  Ste. 
Marie  (Mich.)  155  N.  W.  597. 

26  M.  Johnston  v.  Mountain  Commercial  Co.,  1  Cal.  I.  A.  C.  Dec.  100. 

30  Mason  v.  Western  Metal  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  284. 

A  night  watchman,  who  had  contracts  of  hire  with  six  independent  con- 


127  PERSONS  AND   FUNDS   LIABLE  §    30 

owners  do  not  constitute  a  "voluntary  association,"  within  a  provi- 
sion of  the  California  Act  that  the  term  "employer"  may  include 
voluntary  associations.^^  That  a  policeman  hired  by  a  mining  com- 
pany is  also  a  deputy  sheriff  and  receives  fees  from  the  county  does 
not  relieve  the  company  from  liability  where  he  is  stabbed  and 
killed  while  making  an  arrest.^* 

§  30.     Principals  and  contractors 

The  principal  is  a  person  who  undertakes  to  do  work,  either  for 
himself  or  another,  which  forms  part  of  his  particular  trade  or 
business,^^  and  has  engaged  a  contractor  to  do  part  or  all  of  this 

cerns  and  acted  as  watchman  for  all  of  them,  is  an  employe  of  any  one,  and 
may  recover  from  the  one  on  whose  premises  he  is  injured.  Western  Metal 
Supply  Co.  V.  Pillsbury  (Cal.)  156  Pac.  491. 

31  (Wk.  Comp.,  etc.,  Act,  §  13)  Western  Metal  Supply  Co.  v.  Pillsbury  (Cal.) 
156  Pac.  491. 

32  James  v.  Witherbee,  Sherman  &  Co.,  2  N.  Y.  St.  Dep.  Rep.  483. 

3  3  Where  a  man,  hired  to  keep  an  airship  on  show  on  the  grounds  of  the 
defendant  show  company,  hired  a  lecturer,  who  was  killed  when  the  airship 
exploded,  the  defendants  were  principals.  Waites  v.  The  Franco-British  Ex- 
hibition, Inc.  (1910)  2  B.  W.  C.  C.  199,  C.  A.  Where  a  man  purchased  by 
contract  with  a  municipal  corporation,  the  bricks  of  an  old  building,  with  the 
stipulation  that  he  clear  all  the  bricks  and  rubbish  off  the  place,  and  one 
of  his  workmen  was  killed  while  at  work,  the  corporation  was  a  principal. 
Mulrooney  v.  Todd  &  The  Bradford  Corporation  (1910)  2  B.  W.  C.  C.  191,  C.  A. 

Work  not  part  of  trade  or  business. — A  surveyor,  while  supervising  the  re- 
pairing of  a  house  he  had  taken  imder  contract,  was  not  a  principal.  Brine 
V.  May  Ellis,  Grace  &  Co.  (1913)  6  B.  W.  C.  C.  134,  C.  A.  Nor  were  the 
tradesmen  liable  as  principles  where  a  builder  had  by  contract  employed  two 
tradesmen  to  remove  a  building  and  re-erect  it  on  another  location,  where 
they  intended  to  set  up  a  skating  rink,  and  one  of  the  builder's  workmen  was 
injured  (Skates  v.  Jones  &  Co.  [1910]  3  B.  W.  C.  C.  461,  C.  A.) ;  or  the  farmer 
where  a  man  who  owned  a  threshing  machine  upon  renting  it  to  a  farmer 
sent  his  son  to  operate,  and  the  son  was  injured  (Walsh  v.  Hayes  [1910]  2 
B.  W.  C.  C.  202,  C.  A.) ;  or  the  manufacturers,  where  the  workman  of  a  con- 
tractor was  employed  to  do  some  tarring  on  the  premises  of  chemical  manu- 
facturers and  was  injured  (Zugg  v.  J.  &  J.  Cunningham,  Ltd.  [1909]  1  B.  W. 
0.  C.  257,  Ct.  of  Sess) ;  or  other  manufacturers  who  employed  a  deal  i)orter 
by  contract  to  pile  timber  on  their  premises,  and  who  never  did  such  work 


§  30  workmen's  compensation  128 

work.  Under  the  English  Act  and  Acts  following  it  in  this  regard, 
the  principal  or  contractor  is  liable  only  when  the  injury  occurred 
on,  in,  or  about  the  premises  on  which  he  has  undertaken  to  do  any 
work,  or  when  such  premises  or  work  are  otherwise  under  his  con- 
trol or  management.  The  burden  of  proof  in  this  respect  is  on  the 
workman.^*  The  term  "premises"  includes  a  ship.^^  The  word 
"about"  is  employed  in  this  connection  in  a  geographical  sense, 
and  denotes  close  propinquity.^® 

themselves,  it  not  being  customary  for  persons  in  their  trade  to  do  it,  a  work- 
man of  the  contractor  being  injured  (Hockley  v.  West  London  Timber  & 
Joinery  Co.  [1914]  7  B.  W.  C.  C.  652,  C.  A.) ;  or  the  firm,  where  the  workman 
in  a  ganger  employed  by  a  firm  of  drug  grinders  to  unload  a  barge  of  sul- 
phur and  store  it  in  their  warehouse  was  injured,  the  arrangement  being  that 
the  ganger  procure  his  own  gang,  and  divide  among  them  the  money  he  re- 
ceived from  the  firm  (Bobbey  v.  Crosbie  [1915]  8  B.  W.  C.  C.  236,  C.  A.) ;  or 
shipowners,  where  they  hired  a  contractor  to  scale  the  boilers  of  their  ship, 
and  one  of  his  workmen  was  injured  (Luckwill  v.  Auchen  Steam  Shipping 
Co.,  Ltd.  [1913]  6  B.  W.  C.  C.  51,  C.  A. ;  Spiers  v.  Elderslie  Steamship  Co.,  Ltd. 
[1910]  2  B.  W.  O.  C.  205,  Ct.  of  Sess.) ;  or  owners  of  a  barge,  where  they  employ- 
ed the  captain  to  overhaul  it,  and  he  in  turn  employed  the  mate  to  help,  and 
the  mate  was  injured  (Hayes  v.  S,  J.  Thompson  &  Co.  [1913]  6  B.  W.  C.  C. 
130,  C.  A.). 

3  4  Where  an  injured  factory  worker  offered  no  evidence  as  to  just  where 
the  accident  happened,  it  was  held  that  there  was  a  burden  of  proof  upon 
him  to  show  that  it  occurred  on,  in  or  about  the  factory  premises.  McAdam 
V.  Harvey  (1903)  2  I.  R.  511,  C.  A.   (Act  of  1S97). 

3  5  Where  a  man,  hired  under  contractor  by  a  firm  of  coal  merchants  and 
lightermen  to  take  two  lighters  on  a  voyage,  providing  everything,  including 
the  crew,  for  the  compensation  of  a  lump  sum,  appointed  another  man  to 
command  one  of  the  lighters,  and  the  boatswain  of  that  boat  was  injured  on 
ship  during  the  voyage,  the  firm  were  liable  as  principals.  Dittmar  v.  Wilson, 
Sons  &  Co.  (Dittmat  v.  Owners  of  the  Ship  V  393),  (1910)  2  B.  W.  C.  C.  178, 
C.  A. 

30  An  accident  resulting  in  the  death  of  a  workman,  which  occurred  while 
he  was  uncoupling  wagons  on  the  mail  line  of  track  near  the  extremity  of  a 
siding,  which  was  made  a  part  of  the  mine  by  statutory  provision,  occurred 
about  the  mine.  Monaghan  v.  United  Collieries,  Ltd.  (1901)  3  F.  149,  Ct.  of 
Sess.  (Act  of  1897).  Where  a  workman  who  was  carrying  goods  from  a  fac- 
tory building  to  his  lorry,  which  was  about  32  feet  distant  on  the  other  side 


I 


129  PERSONS  AND  FUNDS   LIABLE  §    30 

An  owner  of  land  does  not  stand  to  a  lessee  in  the  position  of 
principal  to  a  contractor  or  subcontractor  under  him.    In  a  Wiscon- 

of  the  street,  was  injured  at  his  work,  the  injury  occurred  about  the  factory. 
McGovern  v.  Cooper  &  Co.   (1902)  4  F.  249,  Ct.  of  Sess.  (Act  of  1897). 

Not  about  the  premises.— The  injury   did  not  occur  about  the  premises, 
where  a  workman  hired  by  a  subcontractor  to  cart  rubbish  was  killed  in  the 
road  two  miles  from  the  site  of  his  work.     Andrews  v.  Andrews  &  Mears 
(1909)  1  B.  W.  C.  C.  264,  C.  A.     An  injury  received  by  a  workman  who  was 
unloading  goods  from  a  wagon  a  mile  and  a  half  from  the  factory,  did  not 
happen  about  the  premises.     Lowth  v.  Ibbotson   (1899)  1  W.  C.  C.  46,  C.  A. 
(Act  of  1897).     Where  a  workman  on  a  new  building  was  killed  on  a  public 
road  from  110  to  160  yards  away  from  the  building,  while  carting  water  to 
the  place,  the  accident  did  not  occur  about  the  premises.     Fenn  v.   Miller 
(1900)  2  W.  C.  C.  55,  C.  A.  (Act  of  1897).    An  injury  sustained  by  a  workman 
while  stacking  rails  700  yards  from  the  "engineering  work"  of  his  employers 
was  not  received  about  the  premises  of  the  "engineering  work."     Back  v. 
Dick,  Kerr  &  Co.,  Ltd.  (1906)  8  W.  C.  C.  40,  H.  L.  (Act  of  1897).     Where  a 
workman  was  injured  while  doing  some  work  he  had  been  sent  to  do,  on  a 
ship  at  dock  some  550  yards  from  the  factory  of  his  employers,  he  vv-as  not 
injured  about  the  factory.     Barclay,  Curie  &  Co.,  Ltd.,  v.  McKinnon   (1901) 
3  F.  436,  Ct.  of  Sess.  (Act  of  1897).    An  injury  to  a  workman,  doing  work  he 
had  been  sent  to  do  on  a  locomotive  half  a  mile  from  his  employer's  factory, 
was  not  sustained  about  the  factory.    Ferguson  v.  Barclay,  Sons  &  Co.,  Ltd. 
(1903)  5  F.  105,  Ct.  of  Sess.  (Act  of  1897).    The  accident  did  not  occur  about 
the  mine,  where  a  miner  transferring  lumber  from  a  railroad  wagon  in  a 
colliery  cart  400  yards  away  from  the  mouth  of  the  pit  was  fatally  injured. 
Coylton  Coal  Co.  v.  Davidson  (1905)  7  F.  727,  Ct.  of  Sess.  (Act  of  1897).     An 
accident  to  the  driver  of  a  coal  train  running  on  a  private  railway  owned  by 
the  colliery   company,   which   happened  three-quarters   of   a   mile   from  the 
mouth  of  the  pit,  did  not  occur  about  the  mine.     Turnbull  v.  Lambton  Col- 
lieries, Ltd.   (1900)  2  W.  C.  C.  84,  C.  A.     Where  a  horse  which  a  carter  was 
driving  bolted  while  on  a  public  road  800  yards  from  the  factory,  the  result- 
ing injury  to  the  carter  was  not  about  the  factory.    Kent  v.  Porter  (1901)  38 
S.  L.  R.  482,  Ct.  of  Sess.  (Act  of  1S97).     The  death  of  a  workman  who  was 
engaged  in  carting  sand  from  the  pit  to  an  "engineering  work,"  the  accident 
happening  21/2  miles  from  the  work,  was  rot  due  to  an  injury  sustained  about 
the  engineering  work.     Pattison  v.  White  &  Co.,  Ltd.   (1904)  6  W.  C.  C.  61, 
C.  A.  (Act  of  1897).    Where  the  driver  of  a  load  of  lumber  going  from  a  fac- 
tory to  a  building  in  course   of  construction  met  with  an  accident  on  the 
public  road  two  miles  from  the  factory,  causing  his  death,  the  accident  did 
not  occur  about  the  factory.     Whitton  v.  Bell  &   Sime,  Ltd.  (1899)  1  F.  942, 
Ct.  of  Sess.  (Act  of  1897).    Where  a  carter's  horse  bolted  just  as  he  was  pass- 
ing through  the  gate  of  a  railroad  station  on  his  way  to  the  stables,  and 

HON.COMP. — 9 


§  30  workmen's  compensation  130 

sin  case,  the  Commission  said  that  it  was  not  the  intention  of  the 
Legislature  to  make  an  owner  of  land  liable  for  compensation  to 
employes  of  the  tenant.^'' 

In  respect  to  the  liability  of  one  as  principal,  there  is  a  striking 
distinction  between  the  English  Act  and  the  California  Act.  The 
Compensation  Act  of  England  provides  that  the  principal  shall  be 
liable  to  pay  to  any  workman  employed  in  the  execution  of  work 
"any  compensation  under  this  Act  which  he  would  have  been  liable 
to  pay  if  that  workman  had  been  immediately  employed  by  him." 
The  Compensation  Act  of  California  provides  that  the  principal 
must  pay  "any  compensation  which  the  immediate  employer  is 
liable  to  pay."  ^^  Under  the  former,  the  liability  of  the  principal 
is  to  be  tested  by  his  own  circumstances,  while  under  the  latter 
the  test  of  liability  is  the  liability  of  the  immediate  employer.^'' 

the  carter  was  injured,  the  injury  did  not  occur  about  tbe  railway.  Bath- 
gate V.  Caledonian  Railway  Co.   (1902)  4  F.  313,  Ct.  of  Sess.  (Act  of  1S97). 

Where  injury  to  a  workman  occurred  while  he  was  engaged  in  loading 
a  cart  in  the  street  near  the  entrance  to  his  employer's  premises,  he  was 
about  the  premises.  Powell  v.  Brown  [1899]  1  Q.  B.  157,  C.  A.,  1  W.  C.  C. 
44  (Act  of  1897).  Where  one  buying  window  frames,  to  be  made  up,  orders 
from  the  millman  a  definite  number  at  a  definite  price,  and  the  work  is  all 
done  on  the  millman's  premises,  the  buyer  is  not  a  principal,  or  liable  to  a 
carpenter  employed  by  the  millman  to  fill  the  order.  Hale  v.  Johnson,  2  Cal. 
I.  A.  C.  Dec.  339. 

Where  an  exhibitor  secures  floor  space  in  an  exhibition  building,  and  ar- 
ranges to  have  a  booth  erected  and  decorated  by  a  contractor,  and  employe 
of  the  contractor  is  injured  upon  the  premises  upon  which  the  work  of  erect- 
ing and  decorating  is  being  done,  and  where  the  work  of  decorating  was  to 
some  extent  directed  by  the  exhibitor,  such  exhibitor  is  liable  as  a  principal 
for  injuries  received  by  employees  engaged  upon  such  work.  Brain  v.  Eis- 
felder,  2  Cal.  I.  A.  C.  Dec.  30. 

3  7  Puddy  V.  Fitch,  Rep.  Wis.  Indus.  C^m.  1914-15,  p.  17. 

38  Wallace  v.  Pratchner,  2  Cal.  I.  A.  C.  Dec.  661. 

3  9  "In  this  respect  a  striking  distinction  exists  between  the  wording  of  the 
California  Compensation  Act  and  the  wording  of  the  English  statute  and 
those  of  the  other  American  states  which  are,  in  the  main,  founded  upon 
the  English  law.  The  provision  of  the  English  law  in  this  connection  is  as 
follovv's:    'Where  any  person  (in  this  section  referred  to  as  principal),  in  the 


131  PERSONS  AND   FUNDS   LIABLE  §    30 

Thus,  under  the  California  Act,  where  a  contractor  is  liable  for 
an  injury  to  his  employe,  his  principal  is  also  liable,  although  the 
employment,  while  in  the  usual  course  of  business  of  and  not  cas- 
ual as  to  the  contractor,  is  both  casual  and  not  in  the  usual  course 
of  business  of  the  principal.*** 

course  of  or  for  the  purposes  of  Ms  trade  or  business,  contracts  witli  any 
other  person  (in  this  section  referred  to  as  the  contractor)  for  the  execution 
by  or  under  the  contractor  of  the  whole  or  any  part  of  any  worlv  undertalien 
by  the  principal,  the  principal  shall  be  liable  to  pay  to  any  workman  employ- 
ed in  the  execution  of  the  work  any  compensation  under  this  Act,  which  he 
would  have  been  liable  to  pay  if  that  workman  had  been  immediately  em- 
ployed by  him.'  Under  this  provision  it  clearly  appears  that  the  liability  of 
a  principal  is  to  be  tested  by  his  own  circumstances ;  i.  e.,  if  the  injured  man 
were  working  for  him  directly,  doing  the  same  kind  of  work.  Under  the  Cali- 
fornia law,  on  the  other  hand,  the  provision  is  as  follows:  'Sec.  30.  (a)  The 
principal,  any  general  contractor  and  each  intermediate  contractor  who  un- 
dertakes to  do,  or  contracts  with  another  to  do,  or  to  have  done  any  work, 
shall  be  liable  to  pay  any  employe  injured  while  engaged  in  the  execution  of 
such  work,  or  to  his  dependents  in  the  event  of  his  death,  any  compensation 
which  the  immediate  employer  is  liable  to  pay.'  The  test  of  liability  is 
therefore  the  liability  of  the  immediate  employer,  and  the  principal  cannot 
claim  any  defenses  not  open  to  such  immediate  employer.  In  other  words, 
if  the  immediate  employer  is  liable  to  paj-  compensation  under  the  Act,  then 
the  principal  is  also  liable  to  pay  (if  the  immediate  employer  does  not).  The 
liability  of  the  principal  being  strict  and  onerous,  under  the  California  law, 
the  Act  allows  him  unusual  defenses  not  given  to  other  parties.  He  can  at 
any  time  within  the  period  allowed  by  law  recover  back  from  the  immediate 
employer  any  compensation  which  he  has  been  obliged  to  pay  because  of  the 
default  of  the  latter.  He  can  also  require  the  contractor  to  carry  compen- 
sation insurance,  and  if  the  latter  does  so,  the  principal  is  relieved  from  all 
liability.  His  position  is,  therefore,  no  worse  than  that  of  owners  of  build- 
ings under  our  mechanics'  lien  laws,  and,  indeed,  is  much  better  by  reason 
of  his  ability  to  require  insurance  from  his  contractors  or  subcontractors  and 
also  in  his  ability  to  insure  his  own  liability  at  a  reasonable  rate."     Id. 

40  Ncel  V.  White,  2  Cal.  I.  A.  C.  Dec.  933.  A  principal  or  general  contrac- 
tor, upon  whose  premises  an  employe  of  a  contractor  has  been  injured,  has  a 
position  analogous  to  that  of  a  surety,  and  must  pay  any  compensation  for 
which  the  immediate  employer  is  liable.  He  cannot  resist  liability  upon  the 
ground  that  the  employment  of  the  injured  man,  as  to  him,  was  both  casual 
and  outside  of  his  usual  course  of  business,  where  the  employment  of  such 
injured  person  is  in  the  usual  course  of  business  of  the  immediate  employer. 
(Wk.  Comp.  Act,  §  30)  Wallace  v.  Pratchner,  2  Cal.  I.  A.  C.  Dec.  661.    In  this 


§  30  workmen's  compensation  132 

The  provisions  of  this  Act  relative  to  the  liability  of  contractors 
and  principals  have  been  construed  by  the  California  Industrial 
Accident  Commission  in  several  decisions.  According  to  these  de- 
cisions, a  municipal  corporation  may  be  held  liable  as  a  principal.*^ 
And  where  an  employe  is  injured  while  working  for  a  subcontractor 
in  the  construction  of  a  building,  the  subcontractor  is  primarily 
liable  as  the  immediate  employer.  The  general  contractor  and 
owner  of  the  premises  as  principal,  is  also  liable  if  the  subcontractor 

case  the  immediate  employer,  whose  regular  business  was  that  of  painting, 
employed  a  painter  to  assist  him  in  painting  the  house  of  the  principal.  The 
job  was  for  but  two  days,  and  casual  as  to  both  the  principal  and  the  im- 
mediate employer.  It  was  in  the  usual  course  of  business  of  the  immediate 
emploj'er,  and  not  of  the  principal.  The  commission  held  that,  the  immedi- 
ate employer  being  liable  under  the  Compensation  Act  for  injuries  sustained 
by  the  employe,  the  principal  is  also  liable,  though  he  would  not  have  been 
liable  if  the  workman  had  been  employed  directly  by  him. 

41  A  municipal  corporation  is  liable  as  principal  under  section  30  for  com- 
pensation for  injuries  received  by  a  contractor's  employe  while  doing  street 
improvement  work.  Since  the  liability  is  not  contractual,  but  statutory,  de- 
cisions holding  that  the  city  is  not  liable  on  the  contractor's  default  to  pay 
for  work,  labor,  and  material,  do  not  apply.  Nor  can  the  city  be  held  liable 
on  the  theory  that  it  is  agent  for  the  assessment  district.  Mihaica  v.  Mlag- 
enovich,  1  Cal.  I.  A.  C.  Dec.  174.  The  commission  followed  the  Mihaica 
Case  and  held  that  a  municipal  corporation  is  liable  as  principal  for  compen- 
sation for  injuries  received  by  an  inspector  of  engineering  employed  by  the 
city  to  inspect  work  being  done,  pursuant  to  the  improvement  Act  of  1911, 
under  the  usual  form  of  assessments  levied  upon  a  district  within  the  mu- 
nicipality instead  of  being  paid  for  out  of  the  general  funds  of  the  city. 
Spears  v.  City  of  Santa  Monica,  2  Cal.  I.  A.  C.  Dec.  1016.  Where  a  bid  to  do 
work  on  a  county  bridge  is  accepted  by  the  county,  but  work  is  started 
and  an  employe  is  accidentally  injured  before  execution  of  the  written  con- 
tract and  filing  of  the  required  bonds,  and  afterwards  the  county  accepts  the 
work  and  settles  with  the  contractor's  creditors,  the  county  is  liable  as  prin- 
cipal if  the  contractor  is  uninsured.  Forbes  v.  County  of  Humboldt,  2  Cal. 
I.  A.  C.  Dec.  887.  Where  the  owners  of  land  in  a  farmer's  protection  district 
wei'e  permitted  to  pay  their  assessments  in  cash  or  by  furnishing  their  teams 
and  workmen,  and  one  owner  supplied  a  farm  laborer  to  work  under  a  fore- 
man employed  by  the  district,  and  while  so  engaged  the  laborer  was  injured, 
the  district  was  the  principal  and  the  farm  owner  the  immediate  employer, 
and  both  were  liable  for  compensation.  Mann  v.  Looke,  2  Cal.  I.  A.  C.  Dec. 
415. 


133  PERSONS   AND  FUNDS   LIABLE  §    30 

is  unsecured.  The  award  of  compensation  will  be  made  jointly 
and  severally  against  the  subcontractor,  general  contractor  and 
owner.*^  Where  the  owner  of  a  lot  contracts  to  sell  it  to  another, 
and  retains  no  interest  except  as  security  for  the  stipulated  pur- 
chase price,  and  the  purchaser  commences  to  erect  a  building  on  the 
lot  for  his  own  benefit  and  in  his  own  name,  a  workman  injured  in 
working  upon  the  building  cannot  recover  compensation  from  the 
vendor.*^  That  one  is  lessor  does  not  make  him  liable  as  principal 
for  injuries  to  employes  of  his  lessee.**  Where  a  general  contrac- 
tor agrees  with  his  principal  that  the  right  to  discharge  workmen 
shall  be  reserved  to  the  contractor  and  the  architect  and  that  the 
contractor  shall  be  responsible  for  any  injury  occurring  in  connec- 
tion with  the  work,  and  where  the  business  agent  of  a  union  pro- 
cures the  workmen  and  agrees  with  the  general  contractor  that 
they  shall  be  paid  a  definite  sum  per  thousand  for  lathing,  but  nei- 
ther the  business  agent  nor  the  union  receive  any  compensation 

4  2  Hattan  v.  Hattan,  1  Cal.  I.  A.  C.  Dec.  324. 

43  Anderson  v.  Mickelson,  1  Cal.  I.  A.  C.  Dec.  189. 

44  A  lessor  of  mining,  oil,  or  other  lands  is  not  liable  for  compensation  for 
injuries  to  employes  of  his  lessee.  One  not  the  employer  of  the  injured  man 
can  be  held  liable  for  compensation  only  under  section  30,  which  provides  that 
the  principal,  general  contractor,  or  intermediate  contractors  who  undertakes 
to  do,  or  have  done  any  work  for  them,  are  liable  for  injuries  to  employes  of 
subcontractors.  This  section  does  not  make  a  lessor  liable  for  injuries  to 
employes  of  his  lessee.  Cypher  v.  United  Development  Co.,  1  Cal.  I.  A.  C.  Dec. 
425.  Where  a  corporation  owning  oil  wells,  after  default  in  payment  of  a 
mortgage  thereon,  turns  the  property  over  to  the  mortgagee  as  a  lessee,  such 
lessee  to  apply  the  proceeds  to  his  indebtedness,  and  a  workman  employed 
by  such  lessee  is  injured,  the  owning  corporation  is  not  liable  for  injuries  sus- 
tained by  such  employes  of  the  lessee.  Farris  v.  Potomac  Oil  Co.,  2  Cal.  I.  A. 
C.  Dec.  487.  Where  an  exhibitor  secured  floor  space  in  an  exhibition  building, 
and  an  employe  of  his  contractor  was  injured  while  working  on  a  booth  being 
erected  upon  such  floor  space,  the  owner  of  the  building  was  not  liable  as  a 
principal.  A  lessor  is  not  usually  liable  for  injuries  to  an  employe  of  a  lessee 
or  his  subcontractors,  for  the  reason  that  the  work  upon  which  the  employe 
is  injured  is  not  work  which  the  lessor  has  undertaken  to  have  done  for  him- 
self, but  is  being  done  for  the  lessee's  sole  benefit.  Brain  v.  Eisfelder,  2  Cal. 
I.  A.  C.  Dec.  30. 


§  30  workmen's  compensation  134 

for  such  service,  or  retain  any  control  of  right  to  discharge  the 
workmen,  and  neither  the  agent  nor  the  union  assume  any  Hability 
or  responsibihty  for  the  amount  of  work  to  be  done,  or  the  time 
within  which  it  is  to  be  done,  or  the  price  of  the  job,  the  only 
agreement  made  being  to  gratuitously  furnish  men,  the  general 
contractor  is  the  employer  of  the  lathers  and  liable  as  such  for 
compensable  injuries.  The  union  and  its  business  agents  are  in 
no  way  liable  as  subcontractors.**^  Where  the  one  who  hires  the 
injured  employe  is  merely  a  superintendent  engaged  by  the  owner 
and  not  an  independent  contractor,  the  liability  to  pay  compensa- 
tion rests  on  the  owner  alone,  and  not  on  the  superintendent.*^ 
Where  the  principal  or  general  contractor  has  paid  compensation 
to  an  injured  employe  for  which  a  subcontractor  is  primarily  lia- 
ble, he  is  entitled  to  recover  the  amount  thereof  from  the  subcon- 
tractor. Upon  the  payment  of  such  compensation  to  the  injured 
employe,  the  Commission  will  upon  request  make  a  supplementary- 
award  in  favor  of  such  principal  or  general  contractor  against  the 
immediate  employer.*^  Under  the  express  provisions  of  the  Cal- 
ifornia Act,  a  principal  or  general  contractor  is  entitled  to  an  order 
staying  execution  of  the  award  against  him  until  such  execution  be 
returned  unsatisfied  against  the  subcontractor  and  immediate  em- 
ployer. Where,  however,  it  appears  that  such  stay  would  be  a 
mere  formality  by  reason  of  the  irresponsibility  of  the  subcontrac- 
tor, a  stay  will  not  be  ordered  unless  specially  requested.*^ 

The  Connecticut  Act  provides  that  when  any  principal  em- 
ployer procures  any  work  to  be  done,  wholly  or  in  part,  for  him 
by  a  contractor,  or  through  him  by  a  subcontractor,  and  the  work 
so  procured  to  be  done  is  a  part  or  process  in  the  trade  or  business 

45  Tallman  v.  Hart  Construction  Co.,  1  Cal.  I.  A.  C.  Dec.  568. 

4  6  Batclielder  v.  Kreis,  1  Cal.  I.  A.  C.  Dec.  63. 

4  7  Hattan  v.  Hattan,  1  Cal.  I.  A.  C.  Dec.  324. 

4  8  (Wk.  Comp.  Ins.  &  Safety  Act,  §  30)  Hattan  v.  Hattan,  1  Cal.  I.  A.  C. 
Dee.  324. 


135  PERSONS  AND   FUNDS   LIABLE  §    30 

of  such  principal  employer,  and  is  performed  in,  on,  or  about  prem- 
ises under  his  control,  such  principal  employer  is  liable  to  pay  all 
compensation  under  the  Act  to  the  same  extent  as  if  the  work  were 
done  without  the  intervention  of  such  contractor  or  subcontrac- 
tor.*^ In  a  recent  case  it  was  held  by  the  commissioner,  under  this 
provision  and  a  further  provision  of  the  Act  that  "no  contract, 
express  or  implied,  no  rule,  regulation  or  other  device,  shall  in  any 
manner  relieve  any  employer,  in  whole  or  in  part,  of  any  obliga- 
tion created  by  this  Act,  except  as  herein  set  forth,"  that  where 
the  claimant,  a  carpenter,  was  working  for  a  subcontractor  on 
premises  owned  and  controlled  by  respondent,  and  doing  work 
which  was  a  part  of  respondent's  business,  and  it  further  seemed 
very  likely  from  the  evidence  that  the  contracts  were  mere  sub- 
terfuges to  escape  liability,  compensation  should  be  awarded. ^'^ 

The  Massachusetts  Act  provides  that  if  a  subscriber  make  a  con- 
tract oral  or  written,  with  an  independent  contractor  to  do  the  sub- 
scriber's work,  or  if  such  contractor  enter  into  a  contract  with  a 
subcontractor  to  do  all  or  any  part  of  the  work  comprised  in  the 
contract  with  the  subscriber,  "and  the  association  would,  if  such 
work  were  executed  by  employes  immediately  employed  by  the 
subscriber,  be  liable  to  pay  compensation  under  this  act  to  those 
employes,  the  association  shall  pay  to  such  employes  any  com- 

49  p.  A.  1913,  c.  13S,  §  5.  In  Camellier  v.  Cardilli,  1  Conn.  Comp.  Dec.  215, 
wbere  a  principal  contractor  sublet  the  mason  work  on  a  building,  and  the  sub- 
contractor before  the  work  was  finished  left  the  country,  and  turned  the  con- 
tract over  to  his  brother-in-law,  who  was  to  pay  the  laborers  required  to  finish 
the  work,  and  to  make  a  small  profit,  it  was  held  that  the  brother-in-law  was 
transferred  to  the  position  of  the  subcontractor,  and  both  he  and  the  principal 
were  held  liable.  In  Murphy  v.  Blycher,  1  Conn.  Conip.  Dec.  443,  the  respond- 
ent contended  that,  because  claimant  was  the  employe  of  a  subcontractor  who 
employed  less  than  five  men  and  who  had  not  accepted  the  Act,  claimant  there- 
fore did  not  come  under  the  Act.  The  commissioner  held  this  interpretation 
erroneous,  and,  the  subcontractor  being  irresponsible  and  having  left  for 
unknown  parts,  awarded  compensation  against  the  principal  contractor. 

5  0  (Wk.  Comp,  Act,  pt.  B.,  §§  5,  33)  Mezansky  v.  Sissa,  1  Conn.  Comp.  Dec. 
430. 


§  30  workmen's  compensation  136 

pensation  which  would  be  payable  to  them  under  this  act  if  the 
independent  or  subcontractors  were  subscribers."  ^^  In  a  recent 
case  applying  this  provision,  it  was  held  that  the  conveyance  of 
picks,  shovels,  and  wheelbarrows,  and  of  constructed  and  fabricated 
parts  of  a  building  from  the  storehouse  of  a  builder  and  contractor 
to  the  premises  where  they  are  to  be  used,  or  are  to  be  com- 
bined into  a  proposed  structure,  may  be  found  to  be  a  part  of  the 
trade  or  business  of  a  contractor  and  is  not  necessarily  an  act  mere- 
ly ancillary  and  incidental  to  the  business  of  that  contractor.^^ 
Where  the  claimant's  employer  entered  into  an  oral  contract  with  a 
firm  of  building  contractors  to  load  and  transport  some  materials 
through  his  servant,  in  his  own  way,  such  employer  was  an  inde- 
pendent agent  or  contractor.^^ 

A  company  of  wreckers  having  full  and  unrestricted  charge  of  the 
work,  together  with  the  men  employed  thereon,  are  independent 
contractors  and  liable  as  the  employer  for  the  payment  of  com- 
pensation to  the  widow  of  a  deceased  employe.^*  An  independent 
contractor,  who  undertook  a  job  of  renovating  and  furnished  the 
tools,  scaffolding,  ropes,  etc.,  could  not  escape  liability  by  turning 
the  doing  of  the  work  over  to  another,  either  his  partner  or  his  su- 
perintendent.^^ 

§  31.     Principal  and  agent 

An  agent  who  hires  an  assistant  in  an  emergency,  though  with- 
out express  authority  is  not  the  immediate  employer  of  the  assist- 
ant.   The  immediate  employer  in  such  case  is  the  principal  whose 

51  St.  1911,  c.  751,  pt.  3,  §  17. 

5  2  In  re  Comerford,  In  re  Contractors'  Mut.  Liab.  Ins.  Co.  (Mass.)  113  N.  E. 
-iGO,  supported  by  In  re  Sundine,  218  Mass.  1,  105  N.  E.  433,  L.  R.  A.  1916A, 
318. 

53  Id. 

5  4  Opitz  V.  Chas.  Hoertz  &  Son,  Mich.  Wk.  Comp.  Cases  (1916)   311. 
5  5  Kramer  v.  Schalke,  The  Bulletin,  N.  Y.,  vol.  1,  No.  8,  p.  8. 


137  PERSONS   AND   FUNDS  LIABLE  §    31 

work  is  benefited,  and  the  liability  rests  on  him  and  his  princi- 
pals.^*' Where  such  hiring  is  with  the  principal's  knowledge  and 
acquiescence,  the  principal's  conduct  amounts  to  a  ratification  of 
the  hiring.^^ 

5  6  (Wk.  Comp.  Act,  §  30)  Paul  v.  Nikkei,  1  Cal.  I.  A.  C.  Dec.  648. 

In  Dolan  v.  Judson,  1  Conn.  Comp.  Dec.  362,  where  the  claimant  was  em- 
ployed by  an  agent  of  the  respondent  with  full  power  and  authority  to  do  so, 
and  the  wages  were  paid  by  the  respondent  through  such  agent,  he  was  an 
employe  of  such  respondent. 

Where  a  driver  was  employed  to  solicit  sales  of  beer  and  make  delivery  of 
same,  and,  in  performance  of  his  duties,  he  was  permitted  to  employ  helpers, 
and  a  helper  in  performance  of  his  duty  was  injured,  the  brewery  company 
was  liable  for  the  injury  sustained  by  the  helper,  just  as  though  it  employed 
the  helper,  paid  him,  directed  him,  and  controlled  his  every  action  as  an  in- 
dividual employe  of  the  company.  Schmidt  v.  William  Pfeifer  Berlin  Weiss 
Beer  Brewing  Co.,  Bulletin  No.  1,  111.,  p.  118. 

Where  an  expert  was  hired  by  the  owner  of  a  factory  to  supervise  the  in- 
stallation of  machinery,  and,  besides  having  several  of  the  owner's  employes 
to  assist  him,  employed  claimant  and  another  man  also,  both  of  whom  were 
paid  by  the  owner,  claimant  was  an  employe  of  the  factory  owner.  McNally 
V.  Diamond  Mills  Paper  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  11,  p.  12  (on 
rehearing). 

Where  a  town's  agent,  after  refusing  a  contract,  undertook  the  building. of 
a  bridge  on  the  proposition  that  he  furnish  his  own  men  and  machinery  and 
teams  and  be  paid  for  his  work  and  at  a  given  rate  per  day  per  man  for  the 
balance  of  the  crew,  a  member  of  the  crew  selected  by  him  was  an  employ^ 
of  the  town.  Peabody  v.  Town  of  Superior,  Bui.  Wis.  Indus.  Com.  vol.  1, 
p.  99. 

5  7  Paul  V.  Nikkei,  1  Cal.  I.  A  C.  Dec.  648. 


§  32  workmen's  compensation  138 

ARTICLE  II 

INSURERS  AND  FUNDS 

Section 

32.  Distinctive  insurance  features  of  Compensation  Acts. 

33.  Option  of  state  insurance,  private  insurance,  or  self-insurance. 

34.  Rigtits  and  liabilities  of  insurance  companies. 

3.5.  Substitution  of  parties,  subrogation  and  reimbursement. 

36.  Premiums. 

37.  State  insurance. 

38.  Excessive  contributions  and  credits. 

39.  Public  work. 

40.  Pension  roll  and  reserve  fund. 

§  32.     Distinctive  insurance  features  of  Compensation  Acts 

In  respect  to  their  optional  and  compulsory  insurance  or  secu- 
rity features,  the  Acts  of  the  various  states  and  territories  may  be 
divided  into  three  groups,  designated  as  those  which  compel  em- 
ployers subject  to  their  operation  to  carry  insurance  securing  pay- 
ment of  compensation,  or  to  satisfactorily  show  that  they  are  able 
to  pay  compensation  without  carrying  insurance,''^  those  which 
compel  insurance,^^  and  those  which  leave  the  matter  of  insurance 
optional  as  to  all  employers. °°  Several  of  the  Acts  provide  insur- 
ance in  a  fund  administered  by  the  stat-^.  In  some  states  this  is 
the  only  compensatory  insurance  permitted, ^^  while  in  some  em- 

5  8  Colorado,  Connecticut,  Hawaii,  Illinois,  Indiana,  Iowa,  Maine,  Maryland, 
Massachusetts,  Michigan,  Montana,  Nevada,  New  Hampshire,  New  York,  Ohio, 
Oklahoma,  Oregon,  Pennsylvania,  Rhode  Island,  Texas,  Vermont,  Washington, 
West  Virginia,  Wisconsin,  and  "V^^omiug.  In  New  York  this  requirement 
applies  only  in  respect  to  hazardous  employment ;  in  Vermont  it  applies  only 
to  private  employers,  insurance  being  optional  as  to  municipalities  and  other 
public  employers. 

5  9  Insurance  is  compulsory  in  Kentucky,  Massachusetts,  Nevada,  Oregon, 
Texas,  Washington,  and  Wyoming. 

60  In  respect  to  these  matters,  the  Acts  of  Alaska,  Arizona,  California,  Kan- 
sas, Louisiana,  Minnesota,  Nebraska,  and  New  Jersey  are  optional. 

61  Insurance  in  a  state  fund  is  compulsory  under  the  Acts  of  Kentucky, 
Nevada,  Oregon,  Washington,  and  Wyoming. 


139  PERSONS   AND   FUNDS   LIABLE  §    33 

ployers  are  permitted  to  insure  in  the  state  fund  or  carry  their 
own  risks  under  strict  regulations/ ^  and  in  others  they  are  given 
the  option  to  insure  either  in  the  state  fund  or  in  private  compa- 
nies.^^*  Two  of  these  Acts  authorize  insurance  either  in  private 
companies  or  in  a  mutual  association,  state  in  nature/*  and  eighteen 
permit  insurance  only  in  duly  licensed  private  companies.''^ 

A  provision  requiring  insurance,  or,  in  lieu  thereof,  a  satisfactory 
showing  of  financial  ability  to  pay  compensation,  applies  to  all  em- 
ployers, including  cities  and  counties.^^ 

§  33.     Option  of  state  insurance,  private  insurance,  or  self-insur- 
ance 

The  present  New  York  Act  was  intended  to  provide  a  state  sys- 
tem of  insurance,*^  of  employes  engaged  in  hazardous  employment 

62  Ohio  and  West  Virginia. 

63  California,  Colorado,  Maryland,  Michigan,  Montana,  New  York,  and 
Pennsylvania. 

6  4  Massachusetts  and  Texas. 

6  5  Alaska,  Arizona,  Connecticut,  Hawaii,  Illinois,  Indiana,  Iowa,  Kansas, 
Louisiana,  Maine,  Minnesota,  Nebraska,  New  Hampshire,  New  Jersey,  Okla- 
homa, Rhode  Island,  Vermont,  and  Wisconsin. 

6  6  Section  42  of  the  Iowa  Act  requires  that  all  employers  under  that  Act 
insure  their  liability  in  some  insurance  company  approved  by  the  state  depai't- 
ment  of  insurance,  and  provides  that,  if  they  do  not,  they  shall  be  liable  as  if 
they  had  rejected  the  Act  (Code  Supp.  1913,  §  2477m41)  Op.  Sp.  Counsel  to 
Iowa  Indus.  Com.  (1915)  p.  13.  But  section  50  further  provides  that  this 
insurance  will  not  be  required  where  the  employer  furnishes  satisfactory  proof 
to  the  insurance  department  and  industrial  commissioner  that  he  is  solvent 
and  financially  able  to  make  the  payments  of  compensation  when  necessity 
arises  (Supp.  to  the  Code,  1913,  §  2477m49),  or  where  he  deposits  satisfactory 
security  with  the  department.  Id.  All  employers  must  do  one  or  the  other, 
if  they  expect  to  avail  themselves  of  the  provisions  of  the  Act  (Code  Supp. 
1913,  §§  2477m41-2477ml9)  Id.  p.  3.  Cities  must  carry  insurance,  or  be  relieved 
therefrom  by  Industrial  Commissioner  and  Commissioner  of  Insurance.  (Code 
Supp.  1913,  tit.  12,  c.  8a,  §  2477m41)  Id.  p.  7. 

6  7  (Const,  art.  1,  §  19)  Winfleld  v.  New  York  Cent.  &  H.  R.  R.  Co.,  16S  App. 
Div.  351,  153  N.  Y.  Supp.  499. 


§  33  workmen's  compensation  140 

and  to  provide  in  connection  therevv^ith  a  system  of  indemnifica- 
tion of  the  state.^^  It  does  not  contemplate  an  accumulation  of 
surplus  profits  to  be  derived  from  the  assignment  of  causes  of 
action  for  personal  injuries.®^  To  understand  the  real  purpose  of 
this  Act,  the  provisions  for  self-insurance  and  insurance  carriers 
other  than  the  state  fund  should  be  treated  as  makeshifts,  adopted 
for  the  employer's  convenience,  and  not  be  permitted  to  in  any 
way  infringe  on  the  real  spirit  of  the  Act.''"  An  employer  who  be- 
comes a  self-insurer  in  effect  takes  the  place  of  the  state  fund,  and 
his  liability  ceases  to  be  strictly  that  of  an  employer,  and  becomes 
that  of  an  insurer.  He  has  taken  the  place  which  the  statute  pri- 
marily intended  that  the  state  fund  should  take,  and  necessarily 
assumes  corresponding  liabilities.'^^    Likewise  the  fact  that  an  em- 

6  8  (Wk.  Comp.  Law,  §§  95-97)  United  Slates  F.  &  G.  Co.  v.  New  York  Rys. 
Co.,  93  Misc.  Rep.  118,  156  N.  Y.  Supp.  615. 

6  9  This  is  made  evident  by  an  examination  of  section  95,  whicli  provides 
ttiat  tlie  premium  rate  shall  be  "the  lowest  possible  rate  consistent  with  the 
maintenance  of  a  solvent  state  insurance  fund  and  the  creation  of  a  reasonable 
surplus  and  reserve;  and  for  such  purpose  [the  Commission]  may  adopt  a 
system  of  schedule  rating  in  such  a  manner  as  to  take  a  count  of  the  peculiar 
hazard  of  each  individual  risk,"  and  section  96,  which  permits  the  formation 
of  employers'  associations  for  accident  prevention,  and  provides  that  "every 
such  approved  association  may  make  recommendations  to  the  Commission 
concerning  the  fixing  of  premiums  for  classes  of  hazards,  and  for  individual 
risks  within  such  group,"  and  also  section  97.  United  States  F.  &  G.  Co.  v. 
New  York  Rys.  Co.,  93  Misc.  Rep.  118,  156  N.  Y.  S.  615.  This  is  not  a  law 
fixing  liability  for  negligence,  or  fixing  liability  upon  or  creating  a  cause  of 
action  against  the  employer,  but  is  in  substance  a  provision  that  the  state  will 
make  compensation  to  injured  employes  in  hazardous  employments  from  what 
it  has  collected  or  secured  from  them.  It  is  a  state  system  of  insurance.  No 
liability  other  than  the  premiums  is  imposed  on  the  employer  except  by  way 
of  penalty.  (Wk.  Comp.  Law  §  21)  Wiufield  v.  New  York  Cent.  R.  R.  Co.,  168 
App.  Div.  351,  153  N.  Y.  Supp.  499. 

70  Id. 

71  Id. 

The  risks  and  changes  of  business  are  such  that  the  ordinary  individual  or 
firm  cannot  qualify  as  a  self-insurer.  The  large  corporations  whose  continu- 
ous existence  is  assured,  or  who  are  able  to  deposit  the  securities  required, 


141  PERSONS  AND   FUNDS   LIABLE  §    34 

ployer  makes  a  sufficient  showing'  of  financial  ability  to  pay  the 
required  compensation  and  deposits  the  required  securities,  there- 
by becoming  its  own  "insurance  carrier,"  does  not  relieve  it  from 
liability  for  compensation  for  which  a  stock  corporation  or  mutual 
association  would  have  been  liable,  had  it  been  the  insurer.'^^ 

Where  an  employer  has  insured  in  the  New  York  state  fund,  the 
insurance  premium  rests  on  the  basis  that,  when  at  work  -for  his 
employer,  the  employe  is  to  be  engaged  in  the  hazardous  em- 
ployment all  the  while,  and  the  premium  having  been  exacted  on 
that  basis,  prima  facie  the  loss  should  be  met  on  that  basis. "^ 
This  law  should  be  strictly  construed,  so  as  to  give  to  the  employe 
and  employer  alike  the  protection  intended,  and  to  cast  on  the  fund 
the  burden  equitably  resting  upon  it.  The  state,  having  compelled 
the  employer,  under  heavy  penalties,  to  pay  to  it  his  money  on  the 
promise  that  it  will  protect  him  from  loss  on  account  of  injuries 
incurred  in  the  employment,  must  be  held  strictly  to  its  obliga- 
tion/* 

§  34.     Rights  and  liabilities  of  insurance  companies 

Under  a  provision  that  no  payment  of  insurance  shall  be  made 
unless  the  same  shall  cover  the  entire  liability  of  the  employer, 

can  qualify  as  self-insurers.  In  effect,  therefore,  the  law  requires  that  the 
ordinary  individual  and  firm,  and  perhaps  the  great  mass  of  employers,  must 
insure  in  the  ?tate  fund  or  otherwise.  The  law,  therefore,  should  be  con- 
strued on  the  theory  that  it  contemplates  insurance  in  the  state  fund  and 
employers  who  insure  in  the  state  fund  or  otherwise,  or  who  are  self-insurers, 
should  fairly  be  governed  by  the  same  rule.  It  is  the  right  of  the  individual 
employe  and  of  the  employer  that  they  should  be  treated  the  same  as  all  other 
employes  and  employers  within  the  act.  McQueeney  v.  Sutphen  &  Hyer,  167 
App.  Div.  52S,  153  N.  T.  Supp.  554 ;  Spratt  v.  Sweeney  &  Gray  Co.,  16S  App. 
Div.  403,  153  N.  Y.  Supp.  505. 

7  2  (Laws  1913,  c.  816)  Kenny  v.  Union  Ry.  Co.,  1G6  App.  Div.  497,  152  N.  Y. 
Supp.  117. 

73  McQueeney  v.  Sutphen  &  Hyer,  167  App.  Div.  528,  153  N.  Y.  Supp.  554. 

7*  Id. 


§  34  workmen's  compensation  -142 

and  that  every  contract  for  the  insurance  of  compensation  or 
against  liability  therefor  shall  be  deemed  to  be  made  subject  to 
the  requirements  of  the  Act  and  provisions  inconsistent  therewith 
shall  be  void,  an  insurance  company  is  given  no  greater  rights 
than  the  employer.  For  example,  a  reasonable  agreement  made 
in  good  faith  between  the  parties  for  the  payment  of  a  lump  sum 
not  inconsistent  with  the  amount  of  the  periodical  payments  pre- 
viously determined,  will  bind  the  insurance  company  equally  with 
the  employer,  and  the  company  cannot  block  a  settlement  by  ob- 
jecting to  payment  in  a  lump  sum  merely  because  it  was  not  con- 
sulted/^ The  provision  of  the  Connecticut  Act  requiring  that  in- 
surance policies  "shall  cover  the  entire  liability  of  the  employer 
thereunder"  does  not  mean  the  entire  liability  of  the  employer 
named  in  the  policy,  but  his  entire  liability  within  the  terms  of 
the  business  described  in  the  policy.  Hence  a  policy  describing  the 
employer's  business  as  operating  a  farm  will  not  sustain  an  award 
thereunder  to  an  employe  engaged  in  painting  a  building  several 
miles  from  the  farm  and  not  connected  in  any  way  with  the  farm- 
ing operations.''^  While  a  policy  should  be  liberally  construed  to 
cover  employes  reasonably  within  its  terms, ^'^  a  policy  of  insurance 
against  liability  under  the  California  Act  will  not  be  extended  to 
cover  any  employes  or  departments  of  the  employment  not  listed  in 
the  policy.'^*     But  where  a  policy  purports  to  insure  against  all  lia- 

7  5  Bailey  v.  U.  S.  Fidelity  and  Guaranty  Co.,  99  Neb.  109,  155  N.  W.  237. 

7  6  Wriglit  V.  Barnes,  1  Conn.  Comp.  Dec.  248  (superior  court  reversing  com- 
missioner). 

77  A  company  which  had  insured  merchant  tailors  against  liability  under 
the  Massachusetts  Act  was  held  liable  to  an  independent  contractor's  employ^, 
who  was  injured  while  making  clothing  for  such  merchant  tailors  in  their 
workshop,  though  no  insurance  was  carried  by  the  independent  contractor. 
(St.  1911,  c.  751,  pt.  3,  §  17)  In  re  Sundine,  218  Mass.  1,  105  N.  E.  433,  L.  R. 
A.  1916A,  318. 

7  8  Where  the  policy  of  insurance  covers  injuries  to  "laundry  help,"  but  no- 
mention  is  made  of  carpenters  employed  by  the  laundry  for  outside  work, 
carpenters  are  not  included.  English  v.  Cain,  2  Cal.  I.  A.  C.  Dec.  399.  Where 
a  policy  issued  to  a  water  company  provided  that  it  would  not  cover  tunnel 


143  PERSONS  AND   FUNDS   LIABLE  §    34 

bility  arising  under  the  Act,  whether  for  injuries  to  employes  or 
for  injuries  to  employes  of  subcontractors,  and  where  no  limitation 
of  liability  is  set  out  in  the  policy  in  large  type  as  prescribed  by 
the  Act,  such  policy  protects  the  employer  against  accidents  to  em- 
ployes of  subcontractors,  even  though  a  statement  be  contained  in 
the  schedule  of  estimated  pay  roll  to  the  effect  that  no  work  was 
being  don.e  by  subcontract  at  the  time  the  policy  was  taken  out/^ 
A  breach  of  a  warranty  made  in  the  policy  may  release  the  insurer 
from  its  obligations  to  pay  the  compensation  awarded  against  the 
employer.^" 

An  insurance  company  can  succeed  in  escaping  liability  under  a 
policy  issued  by  it  on  the  ground  of  cancellation  only  by  proof  that 
it  followed  the  statutory  method  literally  or  at  least,  if  this  is  not 
done,  that  the  statutory  notice  was  in  fact  received  by  the  in- 
sured.®^ 

The  fact  that  the  insurance  carrier  is,  subsequent  to  the  suffer- 
ing of  the  injury,  deprived  of  its  right  to  further  transact  such  in- 
surance business  in  the  state,  cannot  be  held  to  deprive  the  em-. 

work  and  an  eraployg  was  accidentally  killed  while  working  in  a  tunnel,  the 
insurance  company  was  not  liable,  notwithstanding  a  provision  that  the  policy 
should  cover  accidents  arising  in  connection  with  work  not  specifically  sched- 
uled but  more  hazardous  than  that  scheduled.  Robinson  v.  Durfy,  2  Cal.  I.  A. 
0.  Dee.  lOeO. 

7  9  (Wk.  Comp.  Act,  §  35  [a])  Walker  v.  Santa  Clara  Oil  &  Development  Co., 
2  Cal.  I.  A.  C.  Dec.  1. 

80  Where  the  policy  provides  that  the  statements  set  forth  in  the  schedule  are 
warranted  by  the  employer  to  be  true,  and  one  of  the  statements  is  "that  no 
person  is  or  will  be  employed  by  the  assured  in  violation  of  law  as  to  age," 
and  thereafter  the  employer  innocently  or  willfully  employs,  in  violation  of 
law  as  to  age,  a  minor  who  is  injured  in  the  course  of  his  employment,  the 
insurance  carrier  is  not  liable.    Stanton  v.  Masterson,  2  Cal.  I.  A.  C.  Dec.  707. 

81  Miner  v.  Turnbull,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  21. 

Where  the  employer  was  under  the  impression  up  to  the  day  of  the  accident 
that  he  was  protected  by  insurance,  and  the  insurer  knew  that  its  notice  of 
cancellation  had  not  reached  him,  its  claim  that  it  had  canceled  the  policy 
could  not  be  sustained,  and  an  award  was  made  against  both  employer  and 
insurer.    Skoczylois  v.  Vinocour,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  14. 


§  34  workmen's  compensation  144 

ployer  of  the  right  to  make  any  service  of  notice  upon  it  that  is 
essential  to  full  compliance  with  the  terms  of  the  statute. ^^ 

Under  the  Michigan  Act,  the  insurance  carrier  is  directly  liable  to 
the  injured  workman  or  his  dependents,  and  the  Board  has  author- 
ity in  making  its  award  to  determine  and  fix  the  liability  of  the 
insurer.^^ 

§  35.     Substitution  of  parties,  subrogation  and  reimburse- 
ment 

The  provision  of  the  California  Act  that  any  "employer"  who  is 
insured  at  the  time  of  an  accident  may,  after  serving  notice  upon 
the  insurer  and  employe,  and  filing  a  copy  of  such  notice  with  the 
Commission,  be  dismissed  from  the  compensation  proceedings,  and 
the  insurer  substituted  as  defendant,^*  includes  principals  as  well 
as  immediate  employers.  Consent  by  the  insurer  to  such  substi- 
tution is  not  necessary.^ ^  The  statute  must  however,  be  complied 
with.    An  unsigned  notice  of  substitution  is  ineffectual.** 

Acceptance  of  compensation  from  the  insurance  carrier  by  the 
injured  employe  does  not  estop  him  from  den3-ing  notice  of  sub- 
stitution.^'' The  subrogation  to  the  rights  of  the  employer,  which 
is  provided  for  by  this  Act  in  favor  of  the  insurer,  acts  automatically 
on  the  happening  of  the  accident.  The  insurer  may  at  once  succeed 
to  all  the  rights  and  duties  of  the  em.ployer,  including  the  right 
to  direct  that  the  injured  employe  change  physicians  and  submit 
to  medical  treatment  furnished  by  the  insurer.**  However,  the  in- 
surer can  exercise  no  control  over  the  medical  treatment  until  it 

82  Weiser  v.  Industrial  Accident  Commission  of  State  of  California  (Cal.) 
157  Pac.  593. 

8  3  Oijitz  V,  Chas.  Hoertz  &  Son,  Mich.  Wk.  Comp.  Cases  (1916),  311. 

84  Wk.  Comp.  Act  Cal.  §  34,  (e),  subd.  2. 

8  5  Turner  v.  Oil  Pumping  &  Gasoline  Co.,  2  Cal,  I.  A.  C.  Dec.  496. 

8  6  Frandsen  v.  J.  Llewellyn  Co.,  3  Cal.  I.  A.  C.  Dec.  23. 

87  Id. 

88  Hotchkiss  V.  Boter,  2  Cal.  I.  A.  C.  Dec.  51. 


145  PERSONS  AND   FUNDS   LIABLE  §    36 

has  either  paid  the  compensation  for  which  the  employer  was 
liable,  or  has  assumed  the  employer's  liability  by  giving  notice  of 
such  assumption  to  the  employe  and  the  Commission.^^  Where 
the  insurance  carrier  of  the  principal  or  general  contractor  has 
paid  compensation  to  an  injured  employe  of  the  subcontractor  be- 
lieving him  to  have  been  directly  employed  by  the  assured,  and 
the  carrier  has  not  insured  the  principal  or  general  contractor  for 
injuries  to  employes  of  subcontractors,  but  only  for  injuries  to 
their  own  employes,  the  insurance  carrier  is  entitled  to  an  award 
against  the  subcontractor  for  reimbursement  equally  as  if  it  were 
liable  under  its  policies  for  the  compensation.^'* 

§  36.     Premiums 

The  fact  that  the  insurance  carrier  trusts  the  assured  for  pay- 
ment of  the  premiums,  instead  of  collecting  the  amount  thereof 
when  the  policy  is  delivered,  cannot  be  permitted  to  jeopardize  the 
rights  of  injured  employes,^^  and  hence  failure  of  the  employer  to 
pay  the  premium  on  his  policy  does  not  relieve  the  insurer  from 
liability,  if  the  policy  was  in  effect  at  the  time  of  injury.^-  Wheth- 
er the  employer's  failure  to  pay  an  insurance  premium,  and  for- 
feiture of  his  insurance,  will  deprive  an  employe  of  his  remedy 
against  the  insurer,  depends  on  whether  the  employer's  default  was 
before  or  after  the  injury.^^     That  he  has  evaded  contribution  to 

89  wk.  Comp.,  etc.,  Act,  §  34  (f),  (e)  (1);  Mnllan  v.  Rogers,  2  Cal.  I.  A.  C. 
Dec.  927. 

90  Wk.  Comp.,  etc.,  Act,  §  30  (c) ;   Hattan  v.  Hattan,  1  Cal.  I.  A.  C.  Dec.  324. 

91  Graves  v.  Pacific  Coast  Casualty  Co.,  2  Cal.  I.  A.  C.  Dec.  22. 

92  A  policy  becomes  effective  on  the  delivery  on  the  date  when,  by  its  terms, 
it  is  to  go  into  effect.  Where  a  policy  is  issued  to  go  into  effect  upon  certain 
date,  and  no  deposit  premium  is  exacted,  and  an  accident  occurs  to  an  em- 
ploye of  the  assured  after  such  date,  the  insurer  is  liable,  regardless  of  non- 
payment of  premium.  Lakos  v.  Pacific  Coast  Casualty  Co.,  2  Cal.  I.  A.  C. 
Dee.  21. 

93  The  employers  of  an  injured  workman  having  gone  into  bankruptcy,  he 
claimed  against  their  insurers.     Although  later  the  employers  defaulted  by 

HON.COMP. — 10 


§  36  workmen's  compensation  146 

the  state  fund  does  not,  however,  bar  his  employes  from  receiving 
compensation  from  the  fund.^* 

An  agreement  exacted  or  voluntarily  obtained  from  an  employe 
by  the  employer,  obligating  the  employe  to  pay  premiums  on  insur- 
ance against  risks  covered  by  a  Compensation  Act,  is  void  as 
against  public  policy,  notwithstanding  a  provision  of  the  Act  au- 
thorizing an  agreement  under  which  the  employe  pays  premiums 
on  insurance  against  risks  not  covered  by  the  Act.®^    But  contribu- 

the  nonpayment  of  a  call,  and  ceased  to  be  "entitled  to  any  indemnity  in  re- 
spect to  any  accident,"  tbe  insurers  were  liable  to  the  workman.  Daff  v.  Mid- 
land Colliery  Owners'  Mutual  Indemnity  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  799, 
H.  L. ;  (1912)  5  B.  W.  C.  C.  67,  C.  A.  Where  the  employers  of  an  injured 
worliman  had  defaulted  in  their  insurance  and  no  longer  had  any  claim  upon 
the  insurance  company,  the  company  was  not  liable  to  the  worlvman  upon  a 
suit  brought  by  him  against  them  in  consequence  of  his  employer's  bankruptcy. 
Northern  Employers'  Mutual  Indemnity  Co.,  Ltd.,  v.  Kniveton  (1902)  IS  T.  L. 
R.  504,  Div.  Ct.,  4  W.  C.  C.  37  (Act  of  1S97). 

9  4  The  injured  employes  of  a  defaulting  employer  are  to  be  compensated 
even  when  the  employer  fails  or  refuses  to  report.  (Wk.  Comp.  Act  Wash.  §  8). 
Eulings  Wash.  Indus.  Inc.  Com.  1915,  p.  19.  Loaders  and  unloaders  of  tramp 
ships  and  other  vessels  are  entitled  to  compensation  from  the  funds  of  class 
42  when  they  are  injured,  even  though  the  owner  or  master  has  evaded  con- 
tribution to  the  fund.  (Wk.  Comp.  Act  Wash.  §  4,  class  42)  Id.  p.  13.  An  in- 
jured employe  of  a  defaulting  employer  may  receive  an  award  for  injuries, 
even  though  excluded  from  the  pay  roll;  demand  on  the  employer  or  listing 
the  workman  is  not  a  condition  to  payment  of  compensation.  (Wk.  Comp.  Act 
Wash.  §  8).    Opinion  Atty.  Gen.  Feb.  1,  1912. 

95  Section  31a  of  the  Minnesota  Act  provides  that  "it  shall  be  lawful  for 
the  employer  and  the  workman  to  agree  to  carry  the  risks  covered  by  part  2 
of  this  Act  in  conjunction  with  other  and  greater  risks  and  providing  other 
and  greater  benefits  such  as  additional  compensation,  accident,  sickness  or  old 
age  insurance  or  benefits,  and  the  fact  that  such  plan  involved  a  contribution 
by  the  workman  shall  not  prevent  its  validity  if  the  employer  pays  not  less 
than  the  cost  of  the  insurance  of  the  risks  otherwise  covered  by  part  2  of  this 
Act,  and  the  workman  gets  the  whole  of  the  additional  compensation  or  ben- 
efits." Gen.  Laws  1913,  c.  467,  §  31a  (Gen.  St.  1913,  §  8227).  This  provision 
simply  authorizes  the  employer  and  workman  to  insure  the  workman  for 
something  which  he  could  not  recover  under  the  Workmen's  Compensation 
Act,  and  the  premium  for  such  extraordinary  insurance  could  be  deducted, 
with  the  consent  of  the  workman,  from  his  wages,  but  on  any  insurance  against 


147  PERSONS   AND   FUNDS   LIABLE  §    37 

tions  by  employes  to  a  hospital  fund,  or  funds  to  provide  resident 
physicians  in  remote  camps,  and  to  procure  first  aid  and  competent 
care  in  sickness  and  injury,  are  not  prohibited  by  a  provision  mak- 
ing it  unlav^ful  for  the  employer  to  deduct  his  premiums  from 
the  wages  of  the  employes.'**' 

That  the  Compensation  Act,  under  which  insurance  is  taken 
out,  is  declared  unconstitutional  after  expiration  of  the  policy, 
will  not  prevent  recovery  of  unpaid  premiums.*' 

§  37.    State  insurance 

Payment  of  a  premium  into  the  Ohio  state  insurance  fund  has  no 
retroactive  effect,  so  as  to  relieve  an  employer  from  a  direct  lia- 
bility accruing  prior  to  such  payment.**^ 

Under  the  Washington  Act,  an  employer  who  defaults  in  the 
payment  of  any  premium  is  in  default  in  all  of  his  operations.®^  The 
hazard  of  the  business  or  enterprise  determines  the  application  of 
this  Act,  rather  than  the  degree  of  hazard  to  which  the  individual 

any  accident  mentioned  in  part  2  of  the  Act  the  emploj'er  would  have  no  right 
or  authority  to  collect  from  the  workman  a  sufficient  amount  to  pay  the  pre- 
mium, and  any  agreement  that  might  be  forced  from  or  voluntarily  obtained  from 
the  workman  to  pay  any  premium  on  accidents  covered  by  the  Workmen's 
Compensation  Act  would  be  void  as  against  public  policy.  Op.  Atty.  Gen. 
on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  11. 

86  (Wk.  Comp.  Act  Wash.  §  4)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p. 
10.    As  to  administration  of  Washington  Act,  see  §  11,  ante. 

9  7  New  Amsterdam  Casualty  Co.  v.  Olcott,  165  App.  Div.  603,  150  N.  Y. 
Supp.  772. 

98  In  a  case  under  the  Ohio  Act  the  Industrial  Commission  held  that  an  em- 
ployer who  was  not  a  subscriber  to  the  state  insurance  fund  prior  to  January 
1,  1914,  and  who  failed  to  pay  his  premium  into  the  fund  until  May  2,  1914, 
was  in  default  from  January  1,  1914,  until  the  date  of  such  payment,  and 
that  the  payment  had  on  retroactive  effect,  and  that  therefore  the  employer 
was  liable  to  pay  compensation  direct  to  injured  employes  and  the  dependents 
of  those  killed,  on  account  of  injuries  or  death  occurring  between  January  1, 
1914,  and  May  2,  1914.  Biddinger  v.  Champion  Iron  Co.,  vol.  1,  No.  7,  Bui. 
Ohio  Indus.  Com.  p.  70. 

8»  (Wk.  Comp.  Act  Wash.  §  S)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  18. 


§  37  woekmen's  compensation  148 

workman  is  subjected.  Hazardous  departments  are  the  unit  of 
contribution,  even  though  embracing  employes  who  are  rarely 
in  danger  of  injury.^  This  Act  divides  employments  into  forty- 
seven  different  classes,  and  the  amount  of  the  premium  each  employ- 
er must  pay  is  based  upon  whatever  class  he  is  in.^     When  the 

1  (Wk.  Comp.  Act  Wash.  §  4)  Op.  Atty.  Gen.  Sept.  8,  1911. 

2  Class  1  of  "Construction  Work"  includes  all  underground  work  of  what- 
ever character  in  connection  with  sewer  construction,  includes  tunneling  and 
shafting  and  work  at  the  entrance  thereof,  and  also  such  work  in  open  trench- 
es exceeding  six  feet  in  depth,  but  does  not  include  excavations.  (Wk.  Comp. 
Act  Wash.  §  4,  class  1)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  10.  The  ab- 
sence of  power  driven  machinery  does  not  exempt  occupations  named  in  this 
class,  nor  does  the  small  number  of  employes  engaged,  nor  the  short  time  re- 
quired to  accomplish  the  work.  Id.  p.  7.  Class  9  is  construed  as  continuously 
operating  plants  or  factories  instead  of  construction  or  contracting  enterpris-* 
es,  and  exempts  from  automatic  continuous  monthly  assessment.  Id.  p.  11. 
Class  13  does  not  include  elevators  and  individual  steam  heating  plants  in 
oflice  buildings,  hotels,  apartment  houses,  residences,  retail  and  wholesale 
stores.  Opinion  Atty.  Gen.  Wash.  Sept.  8,  1911.  "Telegraph  and  telephone  sys- 
tems" (class  15)  includes  line  and  repair  work,  but  excludes  telegraph  and  tele- 
phone operators.  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  11.  "Coal  mines" 
(class  16)  includes  shaft  sinking  in  connection  with  coal  mines,  and  excludes 
only  the  office  force.  Id.  "Mines  other  than  coal"  (class  17)  includes  shaft 
sinking  in  connection  with  mines  other  than  coal.  Id.  p.  12.  "Quarries" 
(clags  17)  includes  stone-cutting  when  such  operations  are  conducted  on  ter- 
ritory contiguous  to  and  subject  to  quarry  operation  hazard.  Id.  "Gas 
works"  (class  19)  excludes  meter  readers,  complaint  men,  solicitors,  storeroom 
employes,  and  chauffeurs.  Id.  "Grain  elevators"  (class  21)  includes  flouring 
mills  (2  per  cent.) ;  grain  warehouses,  chop  and  feed  mills  (2  per  cent.) ; 
operation  of  wholesale  warehouses  operated  independently  or  in  connection 
with  another  business ;  teaming  operation  of  transfer  companies ;  operations 
in  retail  lumber  yards  with  or  without  machinery;  and  all  operations  of  re- 
tail fuel  yards ;  but  excludes  threshing  machine  and  hay  baling  outfits,  with- 
out machinery.  Id.  "Laundries"  (class  22)  excludes  hand  laundries,  but  oth' 
erwise  only  the  office  force.  Id.  Class  34  includes  beveling  glass  (2i/^  per 
cent,  rate),  sheet  metal  and  tin  shops,  whether  equipped  with  hand,  foot  or 
mechanical  power.  Id.  Class  35  includes  the  manufacture  of  glass  jars,  in- 
sulators, etc.  Id.  "Working  in  food"  (class  39)  includes  candy  and  cracker 
factories,  but  excludes  the  office  force  of  all  factories  in  the  class.  Id. 
p.  13.  Class  41  includes  linotype  compositors,  proofreaders,  and  foremen  in  the 
room  with  machinery  or  shafting,  and  excludes  bookkeepers  and  office  force 
and  hand  engravers  not  in  a  room  with  machinery.     Id.     "Stockyards  and 


149  PERSONS  AND   FUNDS   LIABLE  §    37 

funds  of  any  particular  class  are  insufficient  to  pay  an  award  the 
Commission  will  certify  and  the  state  auditor  will  issue  warrants 
to  be  cashed  by  the  individual  employer.^  The  legislative  intent  is 
that  each  of  the  forty-seven  funds  shall  be  automatic  and  self- 
adjusting.  The  rate  is  fixed;  time  of  payment  varies  with  the 
need.  The  actual  premium  (percentage  of  pay  roll)  cannot,  how- 
ever, be  determined  in  advance.^  Since  student  trainmen  are 
entitled  to  compensation  if  injured  during  the  period  of  their  stu- 
dentship, the  employer  is  required  to  make  contribution  on  an 
amount  equivalent  to  the  average  rate  of  pay  for  such  work.^  A 
bonus  system  prevailing  in  connection  with  logging  operations  is 
regarded  as  additional  compensation  to  employes  and  should  be 
added  to  the  pay  roll.*^  After  December  31st  of  each  year,  whether 
the  contributor  operated  at  full  capacity,  with  reduced  force,  on  part 
time,  or  not  at  all,  a  credit  found  to  exist  is  available  for  further 
assessments,  or  cash  refund  where,  the  business  ceases.^    Whenever 

packing  houses"  (class  43)  includes  teaming  in  connection  with  stockyards 
and  packing  houses,  but  excludes  retail  meat  markets  and  delivery  wagons. 
Id.  Class  44  includes  ice  wagon  drivers  and  helpers,  but  excludes  refrigera- 
tors of  retail  meat  markets.  Id.  "Theater  stage  employes"  (class  45)  includes 
moving  picture  operators.  Id.  The  following  occupations  have  been  ruled 
outside  the  act:  Operating  and  maintaining  of  elevators  and  individual  steam 
heating  plants  in  office  buildings,  hotels,  apartment  houses,  residences,  and 
retail  stores,  and  farm  hands  grubbing  stumps,  even  with  blasting  powder, 
as  an  incident  to  the  business  of  farming.  (Wk.  Comp.  Act  Wash.  §  4)  Id. 
p.  13. 

3  (Wk.  Comp.  Act  Wash.  §  5)  Id.  p.  16. 

4  Id.  p.  9.  The  premium  of  any  establishment  given  an  average  rate  is 
credited  pro  rata  to  the  respective  classes  represented  by  the  department  pay- 
rolls. Id.  p.  13.  After  the  31st  day  of  December  of  any  year  the  actual  pay 
roll  of  each  establishment  is  obtained,  and  all  contributions  made  during 
the  year  are  adjusted  to  as  many  twelfths  of  such  actual  pay  rolls  as  there 
have  been  monthly  assessments  paid  into  the  fund  during  the  year.  (Wk. 
Comp.  Act  Wash.  §  4)  Id.  p.  9. 

5  (Wk.  Comp.  Act  Wash.  §  5)  Id.  p.  16. 

6  (Wk.  Comp.  Act  Wash.  §  4)  Id.  p.  13. 
T  Id.  p.  9. 


§  37  workmen's  compensation  150 

a  special  assessment  is  ordered  on  any  particular  class  under  this 
Act,  the  basis  is  the  average  monthly  pay  roll  determined  by 
reports  on  file  in  the  Commission's  office.®  A  new  establishment  is 
required  to  contribute  an  initial  premium  on  an  estimated  three 
months'  pay  roll,  but  is  omitted  from  the  list  specially  assessed 
for  such  months,  except  on  the  difference  between  the  estimated 
and  actual  pay  rolls.® 

Claims  for  contributions  to  the  Washington  state  fund  are  not  en- 
titled to  any  priority  over  a  mortgage  debt.^°  The  phrase  "at  the 
end  of  the  year,"  within  a  provision  of  this  Act  that  payment  ac- 
counts shall  be  adjusted  at  the  end  of  the  year,  necessarily  contem- 
plates the  allowance  of  a  reasonable  time  after  the  end  of  the  year 
for  the  examination  of  the  pay  rolls  and  proofs  in  order  to  make 
adjustment/^  The  power  given  to  make  demand  for  a  payment 
due  the  accident  fund  from  an  employer  necessarily  contemplates 
the  power  to  allow  a  reasonable  time  after  notice  of  demand  for 
compliance. ^^    Thirty  days  has  been  held  not  unreasonable.^^ 

§  38.     Excessive  contributions  and  credits 

Excess  contributions  collected  under  the  Washington  Act  on  any 
estimated  pay  roll  over  the  proper  premium  on  the  actual  pay  roll 
stand  as  a  credit  to  the  contributor  at  the  end  of  the  year  adjust- 
ment, and  such  contributor  is  entitled  to  exhaust  such  credit  be- 
fore making  further  payments  into  the  accident  fund.^*  Where 
an  establishment  contributes  as  an  operating  concern  under  one 

8  Id.  p.  9. 

9  Id. 

10  Mississippi  Valley  Trust  Co.  v.  Oregon-Washington  Timber  Co.  (D.  C.) 
213  Fed.  988. 

11  Barrett  v.  Grays  Harbor  Commercial  Co.  (D.  C.)  209  Fed.  95. 

12  Id. 

13  Id. 

14  (Wk.  Comp.  Act  Wash.  §  4)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  9. 


151  PERSONS  AND   FUNDS   LIABLE  §    39 

class  and  afterwards  performs  construction  work  necessitating  pay- 
ment into  funds  of  anotlier  class,  the  operating  plant  being  shut 
down  meantime,  transfer  of  credits  on  the  books  of  the  Commis- 
sion will  be  made.^^  Contributions  made  to  the  insurance  fund  un- 
der a  misapprehension  of  the  scope  of  the  Act  will  be  promptly- 
refunded.^® 

The  provision  of  this  Act  that  "any  class  having  sufficient  funds 
credited  to  its  account  at  the  end  of  the  first  three  months,  or  any 
month  thereafter,  to  meet  the  requirements  of  the  accident  fund, 
that  class  shall  not  be  called  upon  for  such  month,"  does  not  seem 
equitably  to  apply  to  owners  and  contractors  in  construction  work, 
as  continuous  monthly  contribution  is  required  to  place  operators 
in  such  work  on  the  same  competitive  plane.^'^ 

§  39.     Public  work 

Payments  into  accident  fund  for  public  work  under  the  Washing- 
ton Act  are  to  be  made  out  of  the  treasury  of  the  city,  county, 
school,  port,  drainage,  or  taxing  district;  abstracts  of  contractors' 
pay  rolls,  as  well  as  of  the  direct  employes  in  hazard,  are  to  be 
forwarded  to  the  insurance  department  monthly.  Contractors  in 
such  work  are  required  to  file  their  pay  rolls  monthly  with  the 
city,  county  or  district.^^  Where  public  work  of  a  city  is  done  by 
contract,  the  city  may  collect  from  the  contractor  such  sums  as  it 
is  obligated  to  pay  the  accident  fund  on  account  thereof,^^  or  this 
sum  may  be  retained  from  an  amount  due  the  contractor.^"  In  the 
case  of  such  contracts,  the  state  may  wait  until  the  contracts  are 
completed  before  attempting  to  collect  payments  and  may  then  cal- 
ls Id.  p.  10. 
18  (Wk.  Comp.  Act  Wash.  §  4)  Id.  p.  13. 

17  Id.  p.  9. 

18  (Wk.  Comp.  Act  Wash.  §  17)  Id.  p.  22, 

19  State  V.  City  of  Seattle,  73  Wash.  39G,  132  Pac.  45. 

20  Id. 


§  40  workmen's  compensation  152 

culate  the  percentages  on  the  actual  pay  rolls  during  the  period  of 
the  contractors'  liability.  Failure  to  collect  the  premiums  in  ad- 
vance of  the  actual  work  does  not  constitute  a  waiver  of  the  right 
to  collect  same.^^  District  auditors  of  the  Insurance  Commission, 
under  the  Washington  Act,  endeavor  to  audit  pay  rolls  of  city  con- 
tractors quarterly  in  addition  to  making  final  audit  when  the  Com- 
mission is  notified  of  the  completion  of  a  public  contract. ^^  No 
distinction  in  the  rate  of  assessments  under  this  Act  can  be  made 
between  contractors,  or  others,  in  public  or  private  work.  The 
same  premium  and  necessity  of  contribution  apply,  determined  by 
the  pay  roll  of  employes,  hazard,  accident  experience  of  the  class, 
and  the  sound  discretion  of  the  insurance  department.^^ 

§  40.     Pension  roll  and  reserve  fund 

Under  the  Washington  Act,  the  regular  "pension  roll"  is  certified 
to  the  state  auditor  for  payment  on  the  15th  of  each  month,  and 
warrants  are  mailed  on  the  20th.^*  The  reserve  to  be  set  apart  is 
the  present  value  of  the  series  of  monthly  payments  to  be  made.^^ 
The  theory  is  that  "the  industries  of  to-day  shall  provide  for  the 
accidents  of  to-day."  The  reserve  to  guarantee  the  continuance 
of  the  pensions  provided,  "set  apart  for  a  beneficiary  over  thirty 
years  of  age,  should  be  the  proportionate  part  of  $4,000,  determined 
by  the  relation  of  the  expectancy  of  the  life  of  the  beneficiary  to 
the  expectancy  of  one  thirty  years  of  age."  ^^  To  the  reserve  of  a 
widow  is  added  a  reserve  for  children  under  16,  but  not  to  exceed 
$4,000  set  apart  "for  the  case."  ^^     Where  a  class  has  insufficient 

21  Id. 

22  (Wk.  Comp.  Act  Wash.  §  17)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  23. 

23  Id.  p.  23. 

24  (Wk.  Comp.  Act  Wash.  §  5)  Rulings  of  Wash.  Indus.  Ins.  Com.  1915,  p.  14. 
2  5  (Wk.  Comp.  Act  Wash.  §  5,  Subd.  [3])  Opinion  Atty.  Gen.  Jan.  9,  1912. 

2c  (Wk.  Comp.  Act  Wash.  §  16)  Id. 
2  7  Id. 


153  PERSONS   AND   FUNDS  LIABLE  §    40 

funds  to  permit  the  setting  aside  of  the  proper  reserve,  pension 
payment  shall  nevertheless  be  paid  so  long  as  any  funds  are  avail- 
able in  the  class.  In  such  a  case  monthly  assessments  shall  be 
called  until  a  reasonable  fund  is  accumulated.^* 

28  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  16. 


41  workmen's  compensation  154 


ARTICLE  III 

THIRD  PERSONS  (INDEMNITY  AND  SUBROGATION) 

Section 

41.  In  general. 

42.  California — Exercise  of  option. 

43.  Massachusetts. 

44.  Minnesota. 

45.  New  Jersey. 

46.  New  York. 

47.  Washington. 

48.  Wisconsin. 

§  41.     In  general 

Under  Acts  following  the  English  Act  in  respect  to  injuries 
which  arise  out  of  and  in  the  course  of  employment,  and  create  a  le- 
gal liability  on  the  part  of  a  third  person  to  pay  damages,  for  in- 
juries caused  by  his  negligence  or  fault  ^^  without  combining  with 
any  negligence  of  the  employer  or  fellow  workmen  of  the  injured 

28  Where  a  workman  hired  by  the  owners  of  a  warehouse  was  working  at 
noon  on  the  top  story,  and  the  men  occupying  the  building  closed  it  with- 
out allowing  him  sufficient  time  to  get  out,  with  the  result  that  he  fell  down 
an  insufficiently  guarded  hatchway,  which  was  dark,  there  was  a  breach  of 
their  legal  obligation  to  the  workman  as  a  licensee,  and  consequently  they  were 
liable  to  indemnify  the  owners.  Dickson  v.  Scott,  Ltd.  (1914)  7  B.  W.  C.  C. 
1007,  C.  A. 

Where  a  colliery  company  delivered  its  coal  at  the  side  of  the  ship  in  its 
own  trucks  according  to  its  contract,  and  a  gang  of  stevedores  hired  by  the 
harbor  authorities  then  loaded  the  coal  from  the  trucks  onto  the  ship,  and  one 
of  the  stevedores,  being  injured  because  a  brake  did  not  work  properly,  obtain- 
ed compensation  from  his  firm,  the  colliery  company  was  not  liable  to  indem- 
nify the  stevedore  firm,  since  they  owed  no  duty  to  the  man  who  was  injured. 
Kemp  &  Dougall  v.  Darngavil  Coal  Co.,  Ltd.  (1909)  S.  C.  1314,  Ct.  of  Sess. 
Where  a  horse  which  was  temporarily  standing  in  the  yard  of  an  employer 
kicked  one  of  his  workmen  and  killed  him,  but  there  was  no  evidence  of 
negligence,  the  third  parties  who  owned  the  horse  were  not  liable.  Bradley 
V.  Wallaces,  Ltd.  (Thompson,  McKay  &  Co.,  Ltd.,  third  parties),  (1913)  6  B. 
W.  C.  C.  706,  C.  A. 


155  PERSONS  AND   FUNDS   LIABLE  §    41 

employe,^"  damages  and  compensation,  though  coextensive,  are 
strictly  alternative  and  an  employe's  recovery  of  one  bars  him  from 
recovering  the  other.^^  Though  he  may  proceed  concurrently 
against  the  person  liable  for  compensation  and  the  third  person,  he 
cannot  recover  both  compensation  and  damages.  If  he  recover 
compensation,  the  person  paying  the  same  is  entitled  to  be  in- 
demnified by  the  third  person  ^"^  in  the  sum  paid  out,^^  including 

30  There  is  no  liability  to  indemnify  if  the  injury  was  due  to  the  com- 
bined negligence  of  the  employer  and  the  third  person.  Cory  &  Son,  Ltd., 
V.  France,  Fenwick  &  Co.,  Ltd.,  [1911]  1  K.  B.  114,  C.  A. 

81  The  action  of  an  injured  workman  against  a  third  party  for  damages  for 
pain  and  suffering  was  barred  by  a  former  recovery  of  compensation  from  his 
employer.  Tong  v.  Great  Northern  Ry.  Co.  (1902)  4  W.  C.  C.  40,  K.  B.  D. 
The  action  of  a  collier  for  damages  against  a  railroad  company,  by  whose 
negligence  he  had  been  injured,  was  barred  where  he  knowingly  accepted 
compensation  from  his  employers.  Woodcock  v.  London  &  North  Western 
Ry.  (1913)  6  B.  W.  C.  C.  471,  K.  B.  D. 

Where  an  employ^  working  on  the  streets  is  injured  by  a  street  car  and 
thereafter  settles  with  the  street  car  company,  releasing  it  from  liability  in 
consideration  of  a  payment  made,  such  release  relieves  the  employer  from  all 
obligation  to  compensate  the  employ^.  Section  31  gives  the  employe  his  elec- 
tion either  to  claim  compensation  from  the  employer  or  to  prosecute  his  claim 
for  damages  against  the  third  party  causing  the  injury.  An  election  to  accept 
either  course  bars  the  other  remedy.  Silva  v.  Kopperud,  2  Cal.  I.  A.  C.  Dec. 
631. 

As  to  election  of  remedies,  see  §  208,  post. 

3  2  The  right  of  action  of  a  workman's  widow  for  the  wrongful  death  of 
her  husband,  against  the  person  causing  such  death,  passes  to  the  city,  his 
employer,  where  such  city  has  paid  full  compensation  under  the  Act,  and 
the  city  may  do  with  such  right  as  it  chooses.  Saudek  v.  Milwaukee  Electric 
Ry.  &  Light  Co.  (Wis.)  157  N.  W.  579. 

3  3  If  compensation  is  accepted,  the  association  or  insurer  is  subrogated  to  the 
rights  of  the  injured  employe.  Turnquist  v.  Hannon,  219  Mass.  560,  107  N. 
E.  443 ;    Barry  v.  Bay  State  St.  Ry.  Co.,  222  Mass.  306,  110  N.  E.  1031. 

Where  the  injury  to  a  workman  is  caused  by  the  act  of  a  third  party,  mak- 
ing him  legally  liable,  and  the  employe  recovers  under  the  compensation  act 
against  the  employer,  the  employer  is  then  subrogated  to  the  employe's  rights, 
so  that  he  may  recover  from  the  third  party  the  amount  he  has  paid  the  em- 
ploy§  on  account  of  the  injury,  but  he  cannot  recover  more  than  he  has  paid. 
Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  32. 


§  41  workmen's  compensation  156 

doctor  bills, ^*  costs  of  arbitration/^  and  the  like.  The  third  person 
in  such  case  may  be  a  fellow  workman.^®  Where  a  workman  re- 
ceives money  payments  from  the  third  person,  he  has  recovered 
damages  from  him,  barring  his  right  to  recover  compensation, 
though  there  has  been  no  acknowledgment  of  liability,^'^  or  suit 
brought,^^  and  even  though  he  has  attempted  to  reserve  his 
claim  against  his  employer,^^  and  given  receipts  purporting  to  be 
"without  prejudice."  *"    Where  an  employe,  without  making  claim 

s*  An  employer,  against  whom  there  has  been  a  recovery  for  an  injury  caus- 
ed by  the  act  of  a  third  party,  can  recover  from  that  party  the  amount  the  em- 
ployer has  paid  out  for  doctor  bills  for  the  employ 6.  Op.  Sp.  Counsel  to  Iowa 
Indus.  Com.  (1915)  p.  33. 

3  5  Great  Northern  Ry.  Co.  v.  Whitehead  (1902)  4  W.  C.  C.  39,  K.  B.  D. 
Where  the  driver  of  one  of  plaintiff's  trucks  was  killed  when,  through  the 
negligent  management  of  defendant's  driver,  their  truck  collided  with  his, 
and  the  plaintiffs,  after  paying  the  driver's  widow  full  compensation  (£300), 
sued  for  this  amount  plus  arbitration  costs,  they  were  entitled  to  recover  the 
amount  sought.  Daily  News,  Ltd.,  v.  McNamara  &  Co.,  Ltd.  (1914)  7  B. 
W.  C.  C.  11,  K.  B.  D. 

3  6  Two  workmen,  who  by  a  breach  of  statutory  rules  caused  the  injury  of 
a  fellow  workman,  were  not  held  subject  to  a  fine,  but  were  held  liable  to 
indemnify  the  employers.  Lees  v.  Dunkerley  Bros.  (1911)  4  B.  W.  C.  C.  115, 
H.  L. ;  Gibson  v.  Dunkerley  Bros.  (Lees  &  Sykes,  third  parties),  (1910)  3 
B.  W.  C.  C.  345,  O.  A. 

3  7  Page  V.  Burtwell,  [1908]  2  K.  B.  758,  C.  A. 

3  8  The  injury  to  a  workman  being  due  to  the  negligence  of  third  persons, 
he  was  paid  damages  by  them  without  being  required  to  bring  suit;  his 
later  proceeding  which  he  brought  was  barred,  and  it  was  held  that  he  had 
already  "proceeded"  against  them.  Mulligan  v.  Dick  (John)  &  Son  (1904)  6 
F.  126,  Ct.  of  Sess.  (Act  of  1897). 

3  9  Where  a  workman  received  damages  from  the  third  party,  although  he 
did  not  resort  to  law,  there  being  no  admission  of  liability,  and  although  he 
reserved  "all  claims  against  other  parties,"  he  was  nevertheless  barred  from 
claiming  compensation  from  his  employers.  Murray  v.  North  British  Ry.  Co. 
(1904)  6  F.  540,  Ct.  of  Sess.  (Act  of  1S97). 

40  The  claim  of  an  injured  workman  against  his  employers  was  held  to  be 
barred  by  his  recovery  of  damages  from  a  third  party,  notwithstanding  the 
fact  that  his  receipts  to  the  third  party  were  "without  prejudice."  Mulligan 
V.  Dick  &  Son  (1904)  6  F.  126,  Ct.  of  Sess  (Act  of  1897). 


157  PERSONS  AND   FUNDS   LIABLE  §    41 

or  instituting  proceedings,  reports  the  injury  and  receives  full 
compensation,  he  has  "recovered"  compensation.*^  It  has  been 
held,  however,  that  w^here  all  but  the  first  of  the  receipts  given 
by  an  injured  workman  to  his  employer  for  weekly  payments 
were  marked  "without  prejudice,"  and  he  later  declined  the  pay- 
ments and  sued  the  third  party  for  negligence,  his  option  under 
the  Act  had  not  been  exercised ;  *-  also  where  the  weekly  payments 
of  compensation  paid  an  injured  workman  by  his  employers  were 
accepted  on  the  agreement  that  they  would  be  paid  back  if  he  suc- 
ceeded against  a  third  party,  the  workman  had  not  recovered 
compensation.*^  In  a  suit  by  an  injured  workman  against  third 
persons  for  negligence,  after  he  had  repaid  money  he  received  in 
weekly  payments  from  his  employer,  saying  that  he  did  not  under- 
stand the  effect  of  the  receipts  he  gave,  which  expressed  that  they 
were  given  for  money  received  as  compensation  under  the  Act, 
it  was  a  question  for  the  jury  whether  he  had  recovered  compen- 
sation.** That  the  dependent  to  whom  the  employer  has  paid  com- 
pensation could  not  have  recovered  damages  from  the  third  person 
will  not  disentitle  the  employer  to  recover  indemnity.*^  Nor  does 
it  take  away  the  right  to  indemnity  that  the  compensation  was 
settled  by   agreement  of  which   the   third  party   had   no   notice.*** 

41  Mahomed  v.  Maunsell  (1907)  124  L.  T.  Jo.  153,  1  B.  W.  C.  C.  269. 

4  2  Oliver  v.  Nautilus  Steam  Sliipping  Co.,  Ltd.,  [1903]  2  K.  B.  639,  C.  A.,  5 
W.  C.  C.  65  (Act  of  1897). 

4  3  Wright  V.  Linsay  (1912)  5  B.  W.  O.  C.  531,  Ct.  of  Sess. 

44iiuckle  V.  London  County  Council  (1911)  4  B.  W.  C.  C.  113,  C.  A.;  (1910) 
3  B.  W.  C.  C.  536,  Div.  Ct. 

4  5  Where  employers,  whose  workman  was  killed  by  the  negligence  of  serv- 
ants of  a  third  party,  paid  compensation  to  his  sole  dependent,  an  illegitimate 
child,  who  could  not  have  successfully  sued  the  third  party,  they  were 
entitled,  on  suit,  to  indemnity  from  the  third  party.  Smith's  Dock  Co.,  Ltd., 
V.  Redhead  &  Sons,  Ltd.  (1912)  5  B.  W.  C.  C.  449. 

46  Thompson  &  Sons  v.  North  Eastern  Marine  Engineering  Co.,  Ltd.  (1903) 
5  W.  C.  C.  71  (Act  of  1897). 


§  42  workmen's  compensation  158 

§  42.     California — Exercise  of  option 

Where  an  injured  employe  knowingly,  voluntarily,  and  while  in 
possession  of  his  faculties  accepts  from  an  employer  full  medical 
treatment  for  more  than  one  month,  including  hospital  treatment 
for  two  weeks,  this  constitutes  "the  making  of  a  claim  for  com- 
pensation" within  the  meaning  of  a  provision  of  the  California 
Act  that  the  making  of  a  lawful  claim  against  the  employer  shall 
operate  as  an  assignment  to  him  of  the  employe's  claim  for  dam- 
ages. The  acceptance  of  emergency  treatment  for  a  short  period 
of  time  is  not,  however,  sufficient  to  constitute  an  election.*^ 
Where  an  employe  without  having  made  a  lawful  claim  for  com- 
pensation settles  with  and  releases  a  third  person  whose  negli- 
gence caused  the  injury,  he  thereby  extinguishes  the  third  person's 
liability  and  destroys  the  employer's  right  of  subrogation.*^  But 
after  the  employe  makes  a  lawful  claim  for  compensation  against 
his  employer,  the  employer  alone  can  settle  with  and  release  the 
third  person,  and  any  attempted  settlement  and  release  by  the 
employe  is  void.*^  Where  the  employe  has  elected  to  take  com- 
pensation from  his  employer,  and  while  receiving  same,  but  be- 
fore filing  his  application  with  the  Commission,  accepts  money 
from  the  third  person  in  full  settlement  of  his  claim  for  damages 
for  negligence  of  such  person,  such  payment  does  not  take  away 
the  employe's  right  to  compensation.^" 

4  7  (Wk.  Comp.  Act,  §  31)  Silva  v.  Kopperud,  2  Cal.  I.  A.  C.  Dec.  631. 

48  Lantis  v.  City  of  Sacramento,  2  Cal.  I.  A.  C.  Dec.  680. 

4  9  Silva  V.  Kopperud,  2  Cal.  I.  A.  C.  Dec.  631.  The  Commission  cannot 
credit  an  employer  with  payment  received  by  injured  employes  on  a  settle- 
ment with  the  third  person  causing  the  injury,  if  the  employe  made  a  prior 
claim  for  compensation  against  the  employer  prior  to  the  settlement.  The 
payment,  having  been  wrongfully  made  by  the  third  person,  cannot  be  per- 
mitted to  impair  the  employer's  right  to  proceed  against  him  and  recover  dam- 
ages.   Id. 

eo  Id. 


159  PERSONS  AND  FUNDS   LIABLE  §    43 

§  43.     Massachusetts 

The  Massachusetts  Act  does  not  import  into  its  terms  the  equita- 
ble principle  of  subrogation;  it  merely  provides  that,  where  the 
insurer  has  given  prompt  relief  to  the  dependents  or  the  employe 
as  required  by  the  Act,  it  may  enforce  for  its  own  benefits  the 
rights  against  tortious  third  persons  causing  his  injury,  which 
would  otherwise  have  been  available  to  the  employe  or  his  repre- 
sentative.^^ This  Act  puts  upon  the  insurer  the  burden  of  under- 
taking what  in  many  instances  might  be  litigation  uncertain  by  rea- 
son of  disputed  facts  or  novel  law,  but  gives  the  insurer  all  the  ad- 
vantages of  the  right  of  action  which  in  substance  is  assigned  to 
it.  Hence  it  is  an  immaterial  circumstance  how  much  the  insurer 
may  have  paid  or  be  liable  to  pay  under  the  Act.^^  The  rules  of 
law  applicable  to  executed  contracts  and  to  the  doctrine  of  eq- 
uitable estoppel  have  not  been  abrogated,  and  an  insurer,  having 
acted  in  good  faith  and  fully  complied  with  the  Act,  should  not  be 
deprived  of  its  rights.^^  Under  this  Act,  the  remedies,  damages,  and 
compensation  cannot  be  pursued  concurrently,  and  the  choice  post- 
poned until  judgment  has  been  recovered,  and  then,  upon  tender 
to  the  insurer  of  the  amount  of  compensation  received,  the  em- 
ploye collect  the  judgment.^* 

The  compensation  provided  by  the  death  statute  is  in  substance 
a  penalty,  and  hence  the  Legislature  had  power  to  provide  that 

51  (Wk.  Comp,  Act.  pt.  3,  §  15)  Turnquist  v.  Hannon,  219  Mass.  560,  107  N.  E. 
413. 

5  3  Barry  v.  Bay  State  St.  By.  Co.,  222  Mass.  3G6,  110  N.  E.  1031. 

54  (St.  1911,  pt  3,  §  15)  Barry  v.  Bay  State  St.  By.  Co.,  supra;  Grace  v. 
Adams,  100  Mass.  505,  507,  97  Am.  Dec.  117,  1  Am.  Eep.  131;  FoDseca  v. 
Cunard  Steamship  Co.,  153  Mass.  553,  555,  27  N.  E.  665,  12  L.  R.  A.  340,  25 
Am.  St.  Bep.  660;  O'Began  v.  Cunnard  Steamship  Co.,  160  Mass.  356,  361, 
35  N.  E.  1070,  39  Am.  St.  Bep.  484 ;  Atlas  Shoe  Co.  v.  Bloom,  209  Mass.  563, 
95  N.  E.  952;  Colonial  Development  Co.  v.  Bragdon,  219  Mass.  170,  106  N. 
E.  633. 


§  43  workmen's  compensation  160 

one  who  has  afforded  prompt  relief  to  the  dependents  of  the  de- 
ceased shall  receive  same.^° 

Where,  in  an  action  against  a  railroad  for  injuries  to  a  third 
person's  employe,  the  defense  was  that  plaintiff,  by  taking  advan- 
tage of  the  Compensation  Act,  had  estopped  himself  from  recov- 
ering, he  could  not  successfully  set  up  his  ignorance  of  such  Act  to 
bar  enforcement  of  its  provisions. ^^  But  where  defendant  in  such 
case  set  up  an  agreement  between  plaintiff  and  his  employer,  and 
alleged  that  same  was  filed  and  approved  by  the  Industrial  Acci- 
dent Board,  plaintiff  was  entitled  to  show  invalidity  of  the  agree- 
ment and  want  of  jurisdiction  in  the  board  because  his  signature 
was  procured  by  fraud,^''  though  it  is  intended  by  the  Act  to  give 
agreements  of  settlement  which  have  been  duly  filed  and  approved 
by  the  Board  the  same  effect  as  a  decision  of  the  Board. ^* 

§  44.     Minnesota 

A  section  of  the  Minnesota  Act  which  has  been  vigorously,  but 
unsuccessfully,  assailed  is  section  33,  which  provides  for  cases  in 
which  the  employe  is  entitled  to  compensation  for  injuries  which 
occurred  under  circumstances  also  creating  a  liability  against  a 
third  party.  In  case  such  third  party  is  also  subject  to  the  com- 
pensatory provisions  of  the  Act  (part  2),  the  employe  may  either 
recover  from  his  employer  the  relief  prescribed  by  the  Act,  or  may 
bring  an  action  against  such  third  party,  but  cannot  proceed  against 
both.  If  he  proceed  against  the  third  party,  his  recovery  is  lim- 
ited to  the  relief  prescribed  by  the  Act.  If  he  takes  compensation 
from  his  employer  under  the  Act,  the  employer  becomes  subrogated 
to  his  right  of  action  against  the  third  party,  and  may  recover  the 

5  5  (St.  1911,  c.  751,  pt.  3,  §  15)  Turnquist  v.  Hannon,  219  Mass.  560,  107 
N.  E.  443. 

5  6  Barry  v.  Bay  State  St.  By.  Co.,  222  Mass.  366,  110  N.  E.  1031. 

67  Id. 

«8  (St.  1911,  c.  751,  pt.  3,  §  4,  as  amended  by  St.  1912,  c.  571,  §  9)  Id. 


161  PERSONS  AND   FUNDS   LIABLE  §   45 

aggregate  amount  payable  to  the  employe  with  costs,  disburse- 
ments, and  reasonable  attorney  fees.  In  case  such  third  party  is 
not  subject  to  the  compensatory  provisions  of  the  Act,  the  employe 
may  sue  him,  without  waiving  any  rights  against  the  employer, 
and  the  damages  recoverable  are  not  limited  to  the  relief  prescribed 
by  the  Act;  but,  if  the  employe  recovers  from  such  third  party, 
the  employer  is  entitled  to  deduct,  from  the  compensation  payable 
by  him  under  the  act,  whatever  amount  is  actually  received  by 
the  employe  from  the  third  party.  In  other  words,  if  a  sum  equal 
to  or  exceeding  the  compensation  payable  under  the  Act,  is  actually 
collected  from  the  third  party,  the  employer  is  relieved  from  lia- 
bility; but,  if  the  sum  actually  collected  be  less  than  the  amount 
payable  under  the  act,  he  must  make  good  the  deficiency.  If,  in- 
stead of  prosecuting  an  action  against  such  third  party,  the  em- 
ploye collects  compensation  from  his  employer,  the  employer  be- 
comes subrogated  to  the  employe's  rights  against  the  third  party, 
and  may  sue  him  for  the  damages  sustained  by  the  employe;  but, 
after  reimbursing  himself  for  the  compensation  payable  to  the  em- 
ploye, and  for  the  costs,  attorneys'  fees,  and  expenses  of  collecting 
the  damages,  he  must  pay  over  to  the  employe  any  surplus  re- 
maining of  the  amount  collected.^^  The  fact  that  the  third  per- 
son is  an  officer  or  agent  of  a  corporation  which  is  subject  to  the 
statute  does  not  render  the  statute  applicable  unless  the  officer 
was  acting  in  the  course  of  his  authority  for  the  corporation,  and 
to  such  an  extent  as  to  render  the  corporation  liable  for  his  act.^° 

§  45.     New  Jersey 

The  right  to  compensation  under  the  New  Jersey  Act  of  1911 
and  the  right  to  recover  damages  for  tort  are  of  so  different  a 

59  Mathison  v.  Minneapolis  St.  Ry.  Co.,  126  Minn.  2S6.  148  N.  W.  71.  Sec- 
tion 33  of  tbe  Workmen's  Compensation  Statute  (Laws  1913,  c.  467 ;  Gen.  St. 
1913,  §  8229),  in  respect  to  injuries  to  an  employ^,  resulting  from  the  act  of  a 
tbird  person  not  his  employer,  has  reference  to  cases  where  such  third  person 

60  Id. 

HON.COMP. — 11 


§  45  workmen's  compensation  162 

character  that  the  employer  has  no  right  by  way  of  subrogation 
to  the  workman's  claim  against  the  tort-feasor.  By  the  amend- 
ment of  1913  the  employer  is  only  released  when  the  employe  re- 
covers of  the  tort-feasor  a  sum  equal  to  or  greater  than  the  total 
payments  for  v/hich  the  employer  is  liable,  and  the  employer  is 
only  entitled  to  recover  of  the  tort-feasor  a  sum  equal  to  the  amount 
of  the  compensation  payments  which  he  has  paid  to  the  injured 
employe  or  his  dependents. ^^  It  does  not  militate  against  an  ac- 
tion under  this  Act  that  the  representative  of  decedent  has  a  right 
of  action  against  a  third  person. ^^ 

Where  an  employe  was  injured  prior  to  the  Act  of  1913,  through 
the  negligence  of  one  not  his  employer,  under  such  circumstances  as 
to  entitle  him  to  compensation  from  his  employer  under  the  Act  of 
1913,  the  employer  could  not  recover  from  the  third  person  for  the 
compensation  paid  to  the  employe  under  the  statute ;  the  statutory 
compensation  being  part  of  the  compensation  of  the  employe  for 
services  rendered.®^ 

§  46.     New  York 

Where  an  employe  is  injured  by  the  act  of  a  third  person  in 
the  course  of  his  employment,  he  is  entitled  to  claim  compensation 
under  the  New  York  Act.  The  Legislature  deemed  it  proper, 
however,  that  he  be  not  allowed  to  recover  compensation  and  at 
the  same  time  recover  damages.  Accordingly  provision  has  been 
made  for  the  employer's  subrogation  to  the  employe's  rights.  Un- 
der this  provision,  where  the  employe  claims  compensation  his 
cause  of  action  against  the  third  person  is  assigned  to  the  state  if 

is  also  subject  to  the  compensation  statute ;  it  has  application  where  the  third 
person  is  not  subject  to  the  Act.    Hade  v.  Simmons  (Minn.)  157  N.  W.  506. 

61  (P.  L.  1913,  p.  303)  Newark  Paving  Co.  v.  Klotz,  85  N.  J.  Law,  432,  91 
Atl.  91. 

6  2  Bryant  v.  FlsseU,  84  N.  J.  Law,  72,  86  AU.  458. 

63  (P.  L.  1913,  p.  311,  §  23 ;  P.  L.  1911,  p.  520)  Interstate  Telephone  &  Tele- 
graph Co.  V.  Public  Service  Electric  Co.,  86  N.  J.  Law,  26,  90  Atl.  1062. 


163  PERSONS  AND   FUNDS   LIABLE  §    46 

the  compensation  is  payable  from  the  state  insurance  fund,  and 
otherwise  to  the  person  liable  for  payment  of  the  compensation.  In 
other  words,  the  party  who  has  to  pay  or  secure  the  statutory  com- 
pensation can  then  recover  the  damages  for  which  the  third  per- 
son is  liable.*'*  Such  provision  does  not,  however,  prevent  an  em- 
ploye from  suing  the  third  person  for  damages,  but  recognizes  his 
right  to  do  so  if  he  chooses.  If  he  elects  to  do  so,  he  can  claim 
compensation  under  the  statute  only  for  the  deficienc)'-,  if  any,  be- 
tween the  amount  collected  from  the  third  person  and  the  com- 
pensation.^^ In  this  respect  the  New  York  Act  differs  from  the 
Acts  of  many  states,  which  merely  give  the  employe  an  election 
whether  to  sue  or  to  claim  damages.®^  "Subrogation,"  within  this 
Act,  does  not  mean  substitution,  but  means  rather  indemnification, 
and  therefore  limits  the  amount  recoverable  by  the  state  or  insur- 
er to  the  amount  paid  on  the  claim. ''^    It  has  been  said  to  be  a  sig- 

64  (Workmen's  Compensation  Act,  §  29)  Lester  v.  Otis  Elevator  Co.,  1G9 
App.  Div.  613,  155  N.  Y.  Supp.  524,  affirming  90  Misc.  Rep.  649,  153  N.  Y. 
Supp.  1058.  The  receipt  of  compensation  by  an  injured  workman  is  an  elec- 
tion subrogating  the  employer  or  insurer  to  the  workman's  remedies  against 
an  independent  wrongdoer.  Miller  v.  New  York  Rys.  Co.,  171  App.  Div.  316, 
157  N.  Y.  Supp.  200. 

6  5  Id.  The  rights  of  the  servant  under  this  statute,  and  of  the  servant  as 
an  individual  under  the  common  law  or  the  statutes,  are  alike  remedies  which 
are  open  to  him.  Matter  of  Jensen,  215  N.  Y.  514,  109  N.  E.  600,  L.  R,  A. 
1916A,  403,  Ann.  Cas.  1916B,  276 ;  Miller  v.  New  York  Rys.  Co.,  171  App.  Div. 
316,  157  N.  Y.  Supp.  200. 

6  0  Lester  v.  Otis  Elevator  Co.,  169  App.  Div.  613,  155  N.  Y.  Supp.  524,  af- 
firming 90  Misc.  Rep.  649,  153  N.  Y.  Supp,  1058. 

6  7  (Wk.  Comp.  Law,  §  29)  United  States  F.  &  G.  Co.,  v.  New  York  Rys.  Co., 
93  Misc.  Rep.  118,  156  N.  Y.  Supp.  615.  The  clause,  read  in  conjunction  with 
the  title  of  the  section,  does  not  necessarily  import  a  right  on  the  part  of  the 
insurer,  under  his  assignment,  to  recover  all  the  damages  which  the  workman 
might  recover  if  he  elected  to  pursue  his  remedy  against  the  third  party  tort- 
feasor, but  only  such  recovery  as  is  consistent  with  the  purpose  clearly  defined 
in  the  title ;  i.  e.,  the  purpose  of  "subrogation."  Lester  v.  Otis  Elevator  Co., 
90  Misc.  Rep.  649,  153  N.  Y.  Supp.  1058.  Subrogation  is  defined  in  the  Stand- 
ard Dictionary  as  follows:  "The  succession  or  substitution  of  one  person  or 
thing  by  or  for  another ;    in  law,  the  putting  of  a  person  (as  a  surety)  who 


§  47  workmen's  compensation  164 

nificant  feature  supporting  this  construction  of  the  statute  that, 
notwithstanding  the  previous  enactment  of  statutes  in  California, 
Connecticut,  New  Jersey,  Massachusetts,  and  other  states  contain- 
ing provision  for  part  payment  to  the  injured  employe,  or  for  the  re- 
tention in  the  state  insurance  fund  of  any  surplus  amount  collected 
by  the  insurer  in  excess  of  indemnification,  no  such  provision  is 
found  in  this  Act.^^  The  reason  for  the  statutory  declaration  as 
to  election  is  founded  upon  the  common-law  rule  that  there  should 
not  be  a  double  satisfaction  for  the  same  injury.®^  Compensation 
received  by  an  injured  workman  under  the  Act  is  not  insurance 
such  as  will  preclude  a  third  person  who  has  contributed  to  the  in- 
jury from  setting  up  the  employe's  election  through  receipt  of  the 
compensation  and  consequential  subrogation  of  the  employer  or 
insurer  to  his  right  of  action.'^ ° 

§  47.     Washington 

Under  the  Washington  Act  the  Commission  must  await  the  ter- 
mination of  suit  before  making  any  payment  to  a  workman  who 
is  injured  by  a  third  person  and  elects  to  bring  suit  in  lieu  of  ac- 
cepting compensation/^     Workmen  injured  by  third  persons  must 

has  paid  the  debt  of  another  in  the  place  of  the  creditor  to  whom  he  has  paid 
it,  so  that  he  may  use  for  his  own  indemnification  all  the  rights  and  remedies 
that  the  creditor  possessed  against  the  debtor." 

"The  insurer,  upon  paying  to  the  assured  the  amount  of  a  loss,  *  *  * 
insured  is  doubtless  subrogated  in  a  corresponding  amount  to  the  assured's 
right  of  action  against  any  other  person  responsible  for  the  loss."  St.  Louis, 
etc.,  R.  Co.  V.  Commercial  Union  Ins.  Co.,  139  U.  S.  223,  235,  11  Sup.  Ct.  554, 
557,  35  L.  Ed.  154. 

6  8  Id. 

6  9  Walsh  V.  N.  Y.  C.  &  11.  R.  E.  E.  Co.,  204  N.  Y.  58,  62,  63.  97  N.  E.  408, 
37  L.  R.  A.  (N.  S.)  1137;  Gambling  v.  Haight,  59  N.  Y.  354;  Miller  v.  New 
York  Eys.  Co.,  171  App.  Div.  316,  157  N.  Y.  Supp.  200. 

7  0  Miller  v.  New  York  Eys.  Co.,  supra. 

71  (Wk.  Comp.  Act  Wash.  §  3)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  5. 


165  PERSONS  AND   FUNDS   LIABLE  §    48 

assign  their  right  of  action  to  the  state  as  a  condition  of  receiving 
compensation  from  the  accident  fund/^ 

§  48.     Wisconsin 

The  right  of  action  which  the  employer  has  under  the  Wisconsin 
Act  against  a  third  person  whose  wrongful  act  caused  the  injury 
is  an  incorporeal  thing,  resting  in  action — remediable  by  an  ordinary 
judicial  remedy,  as  distinguished  from  a  thing  in  possession.  It 
will  survive,'^^  and  may  be  assigned  by  the  employer  so  as  to  give 
the  assignee  a  right  to  sue  thereon  in  his  own  name.'^^  Thus 
it  will  be  seen  that  an  ordinary  claim  for  damages  for  a  tortious  in- 
jury to  the  person,  notwithstanding  it  was  otherwise  at  common 
law,  is  a  property  right  which  may  pass  by  assignment  or  op- 
eration of  law,  with  the  incidental  right  to  a  judicial  remedy,  by 
and  in  the  name  of  the  real  party  in  interest,  to  enforce  it.  That  is 
the  thing  which,  under  the  Act,  in  the  circumstances  there  men- 
tioned, is  waived  or  becomes  possessed  by  the  employer,  according 
to  the  facts. '^^  The  legislators  seem  to  have  contemplated  that, 
equitably,  a  wrongdoer  is  the  one  primarily  liable;  that  the  statu- 
tory right  of  the  injured  man  shall  work  for  the  wrongdoer's  pro- 
tection, but  if  insisted  upon,  the  other  right  shall  pass  to  the  em- 
ployer as  an  equivalent.  The  idea  was  not  that  the  employer  should 
become  possessed  of  the  common-law  right  for  mere  purposes  of 
indemnity.  That  seems  plain,  because  of  the  transition  not  waiting 
upon  actual  payment  of  the  statutory  claim,  or  the  enforcement  of 
such  common-law  claim  being  limited  to  the  measure  of  the  em- 
ployer's payment  to  discharge  the  statutory  liability.  In  the  cir- 
cumstances mentioned  in  the  statute,  the  rights  of  all  persons  be- 
come fixed  upon  the  event  of  the  employe,  by  action  in  legal  form, 

72  Id. 

7  3  McGarvey  v.  Independent  Oil  &  Grease  Co.,  156  Wis.  580,  146  N.  W.  895. 

74  Id. 

7  5  (Gen.  St.  1913,  §  2394—25)  Id. 


§  48  workmen's  compensation  166 

making  a  choice  between  the  two  ways  open  to  him.  That  against 
the  employer  being  chosen,  that  against  the  wrongdoer  immediate- 
ly passes,  by  operation  of  law,  to  such  employer.  The  status,  ac- 
cording to  the  statute,  is  as  follows :  The  sole  source  of  compen- 
sation for  the  employe  is  the  employer,  but  without  prejudice  to 
the  liability  of  the  wrongdoer,  he  remaining  answerable  just  the 
same,  but  to  the  then  real  party  in  interest,  the  employer.'^®  In 
cases  under  this  Act  it  has  been  held  that  the  fact  that  a  fireman, 
injured  on  a  city  street  and  not  on  his  employer's  premises,  receives 
full  pay  during  his  disability,  does  not  assign  to  the  city  his  right 
of  action  against  a  third  person  who  caused  the  injury;  '^'^  also  that 
where  an  employe,  ignorant  of  his  rights,  goes  to  see  the  assistant 
city  attorney,  and  is  advised  that  he  has  been  injured  while  per- 
forming service  outside  his  duties,  the  attorney  not  intending  to 
mislead  him,  and  then  decides  to  accept  a  sum  offered  him  by  the 
third  party  whose  horses  injured  him,  he  has  not  exercised  such 
election  to  waive  compensation  and  accept  damages  as  will  bar  his 
action  against  the  city,  his  employer.''^ 

76  Id. 

7  7  Hornburg  v.  Morris  (Wis.)  157  N.  W.  556. 

7  8  Manis  v.  City  of  Milwaukee,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  29. 


167  PERSONS   ENTITLED  TO   COMPENSATION  §    49 

CHAPTER  IV 

PERSONS  ENTITLED  TO  COMPENSATION 

Section 

49-69.     Article  I.— Employes. 

70-84.    Article  II. — Dependents. 


ARTICLE  I 

EMPLOYES 
Section 

49.  Persons  entitled  to  compensation  as  employes. 

50.  New  York. 

51.  Contract  of  service. 

52.  State  employes. 

53.  Municipal  employes. 

54.  California. 

55.  Federal  employes. 

56.  Previous  health  of  employS. 

57.  Minor  employes. 

58.  Employes  excepted. 

59.  Farm  laborers. 

60.  Domestic  and  household  servants. 

61.  Clerks. 

62.  Casual  employes. 

63.  Connecticut. 

64.  California. 

65.  Iowa  and  Minnesota. 

66.  Independent  contractor. 

67.  Federal  Act. 

68.  Employe  of  independent  contractor. 

69.  Officers. 

§  49.     Persons  entitled  to  compensation  as  employes 

The  test  by  which  to  determine  whether  one  person  is  another's 
employe,  within  the  rule  making  the  employer  liable  for  injuries  re- 
sulting from  the  negligence  of  his  employe,  is  whether  the  alleged 


§  49  workmen's  compensation  168 

employer  possesses  the  power  to  control  the  other  person  in  respect 
to  the  transaction  out  of  which  the  injury  arose.^    The  court  cannot 

1  State  ex  rel.  Virginia  &  Rainy  Lake  Co.  v.  District  Court,  128  Minn.  43, 
150  N.  W.  211;  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  20;  Kasovitch 
V.  Wattis  Co.,  2  Cal.  I.  A.  C.  Dee.  (Bulletins  1915)  319. 

The  test  by  which  to  determine  whether  a  person  is  acting  as  another's  em- 
ploye is  to  ascertain  whether  at  the  time  of  injury  he  was  subject  to  such 
person's  orders  and  control,  and  was  liable  to  be  discharged  for  disobedience  of 
orders  or  misconduct.  Mason  v.  Western  Metal  Supply  Co.,  1  Cal.  I.  A.  C. 
Dec.  284;  United  States  Board  &  Paper  Company  v.  Lander,  47  Ind.  App.  315, 
93  N.  E.  232.  The  term  "employe"  indicates  persons  hired  to  work  for  wages 
as  the  employer  may  direct,  and  does  not  embrace  the  case  of  the  employment 
of  a  person  carrying  on  a  distinct  trade  or  calling  to  perform  services  inde- 
pendent of  the  control  of  the  employer.  Eep.  Nev.  Indus.  Com.  1913-14,  p.  26. 
Where  a  photographer  furnishes  material  to,  and  develops  and  prints  pictures 
taken  and  sold  by,  a  second  person,  but  has  no  control  over  said  second  person, 
and  cannot  direct  that  person's  movements,  his  time,  his  subjects,  or  his  meth- 
ods of  work,  and  where  the  proceeds  of  the  sales  made  are  divided  between 
them,  and  this  is  the  only  return  on  the  investment  received  by  either  of  them, 
they  do  not  stand  in  the  relation  of  employer  and  employ^,  as  defined  by 
section  14  of  the  Act,  and,  although  the  second  person  be  killed  while  actually 
taking  pictures,  no  compensation  is  due  to  his  dependents.  Shaw  v.  Foley,  1 
Cal.  I.  A.  C.  Dec.  629.  That  a  superintendent  of  construction,  having  peculiar 
skill  and  knowledge  as  an  inventor,  is  allowed  great  liberty  of  action  as  to 
purchase  of  materials  and  manner  of  construction,  did  not  show  such  lack  of 
power  of  diixxtion  and  control  as  prevented  him  from  being  an  employe. 
Turner  v.  Oil  Pumping  &  Gasoline  Co.,  2  Cal.  I.  A.  C.  Dec.  (Bulletins  1915) 
496. 

In  Gertel  v.  H.  W.  Dorman  &  Co.,  1  Conn.  Comp.  Dec.  616,  where  it  ap- 
peared that  the  claimant  was  employed  by  a  man  doing  work  on  the  premises 
of  the  respondents,  standing  to  them  in  the  relation  of  either  tenant  or  licensee, 
and  that  they  had  nothing  to  do  with  the  work,  except  that  they  permitted  it 
to  be  done  on  the  premises,  claimant  was  not  an  employe  of  respondent.  In 
Fineblum  v.  Singer  Sewing  Machine  Co.,  1  Conn.  Comp.  Dec.  126,  it  was  held 
that  where  an  agent  of  the  company  employed  others  to  assist  him  in  making 
sales,  deliveries,  and  collections,  invested  some  of  his  own  capital  in  the  busi- 
ness, and  was  under  no  direction  or  supervision  of  his  principals,  he  was  not 
an  employe.  In  Reed  v.  Booth  &  Piatt  Co.,  1  Conn.  Comp.  Dec.  121,  it  was 
held  that  a  traveling  salesman,  selling  goods  for  the  defendant,  receiving  half 
profits  for  his  work,  paying  his  own  expenses,  and  being  forbidden  to  solicit 
regular  customers  of  the  company,  was  an  employe  within  the  meaning  of  the 
Act.  But  in  Stagg  v.  Benjamin,  1  Conn.  Comp.  Dec.  405,  where  the  claimant 
was  employed  by  the  respondent  to  do  carpenter  work  about  her  properties. 


169  PERSONS  ENTITLED  TO  COMPENSATION  §    49 

determine,  as  a  question  of  law,  that  the  rule  of  respondeat  superior 
does  not  apply,  unless  the  evidence  shows  conclusively  that  the  al- 
leged employer  possessed  no  such  power  of  control.^^     Since  the 

and  was  paid  by  the  day,  and  the  respondent  furnished  the  materials  and  paid 
a  helper  engaged  by  the  claimant,  claimant  was  held  to  have  been  an  employe 
of  respondent. 

Where  a  lather  was  engaged  to  work  to  put  on  laths,  at  the  price  of  25  cents 
a  bunch,  and  worked  alone  at  first,  and  then  obtained  other  men  from  the 
union  to  aid  him  in  the  work,  paying  them  the  same  rate  of  wages,  all  the 
work  being  done  under  the  direction  of  the  foreman,  he  was  a  mechanic  and 
entitled  to  compensation.  Jones  v.  Commonwealth  of  Mass.,  2  Mass. .  Wk. 
Comp.  Cases,  721  (Decision  of  Com.  of  Arb.). 

The  applicant  owned  a  team  and  wagon,  and  was  engaged  in  hauling  dirt 
for  appellant,  receiving  for  the  work  of  himself,  team,  and  wagon  $6  per  day. 
While  so  engaged  he  received  injuries  to  two  fingers,  by  which  he  was  totally 
disabled  for  2%  months,  and  which  resulted  further  in  causing  a  permanent 
stiffness,  by  reason  of  which  the  applicant  has  only  partial  use  of  such  fingers. 
An  arbitration  committee  awarded  the  applicant  compensation  for  43  weeks 
at  50  per  cent,  of  his  average  weekly  wage.  Appellant  contended  that  Ridler 
was  not  their  employe  within  the  meaning  of  the  Act,  and  that  the  award  of 
compensation  was  excessive.  The  Board  held  that  the  fact  that  the  applicant 
worked  under  orders  of  defendant's  foreman,  and  was  required  to  conform  in 
detail  to  the  regulations  and  system  of  work  of  defendant,  was  sufiicient  to 
make  him  an  employe  of  defendant  within  the  meaning  of  the  compensation 
law.    Ridler  v.  Little  Co.,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  27. 

Defendant  company  hired  wagons,  horses,  and  drivers  from  a  third  party, 
and  paid  him  a  certain  amount  per  day  for  each  outfit.  He  in  turn  paid 
claimant,  the  driver,  a  day  wage.  The  claimant,  who  was  under  the  direction 
and  control  of  defendant  at  all  times  during  working  hours,  was  an  employe 
of  defendant.  Nolan  v.  Cranford  Co.,  4  N.  Y.  St.  Dep.  Rep.  337  (afiirmed  in 
155  N.  Y.  Supp.  112S). 

Not  an  employ^. — A  coal  company,  which  owned  mineral  lands  and  operated 
coal  mines  located  thereon,  having  temporarily  suspended  the  operation  of  its 
mines,  leased  a  portion  of  its  lands  to  two  of  its  former  employes,  who  opened 
up  a  small  mine  thereon  and  paid  the  company  a  stated  sum  per  ton  as  royalty 
for  the  coal  removed  therefrom.  In  conducting  their  operations  they  employed, 
paid,  and  discharged  their  laborers,  and  were  not  under  the  supervision  of  the 
lessor.  They  sold  their  coal  in  the  open  market.  They  employed  one  of  the 
lessor's  employes,  and  he  was  fatally  injured  in  the  course  of  his  employment. 
The  Commission  held  that  he  was  not  an  employe  of  the  lessor  at  the  time 
of  injury.  In  re  Ida  Bell  Monroe,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  1S6. 
2  State  ex  rel.  Virginia  &  Rainy  Lake  Co.  v.  District  Court,  supra. 


§  49  workmen's  compensation  170 

Workmen's  Compensation  Acts  are  remedial  in  nature,  and  must, 
as  a  general  rule,  be  given  a  liberal  construction,  to  accomplish  the 
purpose  intended,  provisions  defining  when  the  relation  of  employer 
and  employe  exists  bring  within  the  Acts  all  cases  in  which,  under 
the  above  rule,  such  relation  is  found  to  exist. ^  The  question  to  be 
determined  is,  "What  was  the  alleged  employe  doing,  and  what 
was  his  part  in  or  the  relation  to  the  actual  work?"  rather  than 
whether  his  contractual  relation  with  the  employer  was  such  as  to 
absolve  the  latter  from  common-law  duties  or  of  care  for  the  safety 
of  employes.*  In  the  ordinary  acceptance  of  the  term,  one  who  is 
engaged  to  render  services  in  a  particular  transaction  is  not  an  em- 
ploye; the  term  "employe"  embracing  continuity  of  service,  and 
excluding  those  employed  for  a  single  and  special  transaction.^ 
It  does  not  usually  include  physicians,  pastors,*'  professional  nurs- 
es,'^ or  public  lecturers  on  a  Chautauqua  circuit.^  It  may,  however, 
include  those  not  engaged  in  manual  labor,  such  as  school-teach- 

3  Id. 

4  In  re  Rheinwald,  168  App.  Div.  425,  153  N.  T.  Supp.  598. 

5  Rep.  Nev.  Indus.  Com.  (1913-14)  p.  26.  "The  term  'employ &'  has  a  limited 
and  restricted  meaning,  and  cannot  be  applied  to  include  one  in  the  temporary- 
service  of  a  corporation,  particularly  when  the  service  is  of  a  highly  scientific 
nature.  The  fact  that  a  corporation  temporarily  engages  the  professional 
services  of  a  mining  engineer  to  make  an  examination  of  its  property,  and 
perhaps  act  in  an  advisory  capacity,  does  not  make  the  person  so  engaged  or 
retained  either  a  workman  or  employ^  within  the  meaning  of  the  Act." 
Id.  A  mining  engineer,  or  "an  expert  making  trips  underground  from  time  to 
time  for  the  purpose  of  making  inspection  of  the  workings,"  cannot  be  said 
to  be  "employed  in  the  same  general  employment  and  in  the  usual  and  ordinary 
transaction  of  the  business,"  or  to  be  a  workman  or  employ^  within  the  mean- 
ing of  the  Act.    Id. 

6  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  15. 

7  A  professional  nurse,  performing  her  duties  with  a  skill  which  is  the  result 
of  training  in  that  profession,  is  not  a  servant,  but  rather  one  who  renders  a 
personal  service  to  an  employer  in  pursuit  of  an  independent  calling.  (Code 
Supp.  1913,  §  2477ml6)  Id.  p.  14. 

8  (Code  Supp.  1913,  §  2477m41)  Id.  p.  16. 


171  PERSONS   ENTITLED  TO   COMPENSATION  §    49 

ers.^  The  fact  that  a  workman  furnishes  tools  and  materials,  or 
undertakes  to  do  a  specified  "job"  or  produce  a  given  result,  will 
not  prevent  his  being  an  employe.^"  A  deaconess,  living  and  work- 
ing in  a  hospital  and  receiving  an  annuity  to  cover  her  clothing  and 
personal  expenses,  is  not  an  employe  of  the  hospital ;  neither  are 
nurses  in  training  working  under  the  same  arrangement.^^  Nor  is 
one  an  employe  of  a  religious  home  for  the  aged,  wherein  he  re- 
sides, where  he  has  deeded  all  his  property  to  the  home  and  is  in 
turn  guaranteed  food  and  shelter  for  the  remainder  of  his  life, 
though  he  does  quite  a  little  work  around  the  home  for  which  he 
is  paid  no  stipulated  amount,  or  any  at  all,  except  at  the  option  of 
the  persons  managing  the  home.^^  Under  the  English  Act  one  is 
not  ordinarily  deemed  an  employe  who  is  to  be  compensated  by  a 
share  of  the  profits  ;^^    but  under  some  of  the  state  Acts,  neither 

»  In  Skinner  v.  Connecticut  Scliool  for  Imbeciles,  1  Conn.  Comp.  Dec.  lOG, 
it  was  held  that  it  is  not  necessary  that  an  employe  be  doing  manual  labor  in 
order  for  the  Compensation  Act  to  apply.  The  duties  of  a  school-teacher  re- 
quire just  as  much  expenditure  of  energy  of  mind  and  body  as  other  employ- 
ments. 

10  In  re  Rheinwald,  168  App.  Div.  425,  153  N.  Y.  Supp.  598. 

11  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  13,  p.  32, 

12  Id.  p.  33. 

13  The  remuneration  was  by  the  share,  and  compensation  was  not  recover- 
able where  the  engineer  of  a  steam  fishing  vessel  was  guaranteed  a  minimum 
weekly  wage,  but  was  paid  by  a  share  in  the  profits  (Admiral  Fishing  Co., 
Ltd.,  V.  Robinson  [1910]  3  B.  W.  C.  C.  247,  C.  A.)  ;  where  members  of  the  crews 
of  fishing  vessels  received,  besides  wages,  board,  and  lodging,  a  poundage  on 
the  net  profits  of  the  trip  (Costello  v.  Kelsall  Bros.  &  Beeching,  Ltd.,  Canwell 
V.  Kelsall  Bros.  &  Beeching,  Ltd.,  and  Tindall  v.  Great  Northern  Steam  Fish- 
ing Co.  [1913]  6  B.  W.  C.  C.  480,  H.  L.,  and  5  B.  W.  C.  C.  667,  C.  A.);  where  a 
cook  on  a  fishing  vessel,  who  received,  besides  the  wages  named  in  his  con- 
tract, liver  money,  trip  money,  and  stocker  money  (Burman  v.  Zodiac  Steam 
Fishing  Co.  [1914]  7  B.  W.  C.  C.  767,  C.  A. ) ;  where  a  deck  hand,  who  received 
"stocker"  money  in  addition  to  his  wages,  was  transferred  to  another  steam 
trawler  on  the  same  pay  as  before,  and  the  second  vessel  was  lost  with  all  on 
board  two  days  out,  before  there  was  any  "stocker"  to  divide  (Stephenson  v. 
Rossall  Steam  Fishing  Co.  [1915]  8  B.  W.  C.  C.  209,  C.  A.) ;  where  the  mate  of 
a  trawler  was  paid  by  a  certain  part  of  the  price  which  the  catch  brought. 


§  49  workmen's  compensation  17-1 

the  fact  that  the  wages  are  fixed  in  part  by  the  profits,''*  nor  that 
they  are  not  definitely  fixed  in  amount/'^  nor  that  they  are  payabk 
on  a  commission  basis,  in  whole  or  in  part,  determines  the  relation 
of  employer  and  employe.^®  Nor,  as  a  general  rule,  will  it  pre- 
clude one  from  being  an  employe  that  he  is  to  be  paid  by  the 
job,^^  or  on  a  piece  basis,^^  that  he  is  employed  merely  by  the  day,^** 

after  certain  current  expenses  had  been  deducted  (Aberdeen  Steam  Trawling 

6  Fishing  Co.,  Ltd.,  v.  Gill  [1909]  1  B.  W.  C.  C.  274)  ;  and  where  a  share  hand 
on  a  trawler  was  injured  while  working  at  storing  fish  in  a  cutter,  which  was 
to  take  the  fish  to  the  market,  although  he  was  free  to  refuse  the  work,  but 
was  paid  $1  for  it,  which  sum  was  divided  among  the  crew  on  the  trawler 
(Whelan  v.  Great  Northern  Steam  Fishing  Co.,  Ltd.  [1910]  2  B.  W.  C.  C.  235). 

Where  workmen  on  fishing  vessels  received,  in  addition  to  their  wages, 
stocker  money,  trip  money,  etc.,  but  also  received  additional  wages,  because 
the  share  money  was  so  little  as  to  not  be  worth  considering,  they  were  not 
paid  by  share,  but  were  workmen.  Williams  v.  Steam  Trawler  Duncan  (Own- 
ers of),  and  McCord  v.  Steam  Trawler  City  of  Liverpool  (Owners  of),   (1914) 

7  B.  W.  C.  C.  767,  C.  A. 

14  Employers  are  no  doubt  entitled  to  compensation,  even  though  their  wages 
are  fixed  in  part  by  the  profits  of  the  concern  for  which  they  work.  Op.  Sp. 
Counsel  to  Iowa  Indus.  Com.  (1915)  p.  3. 

15  Where  a  manager  of  the  defendant's  business  had  been  offered  an  interest 
in  the  business,  but  refused,  and,  though  he  had  no  agreement  as  to  the  amount 
of  his  wages,  drew  large  sums  from  time  to  time  with  the  full  knowledge  and 
permission  of  his  employer,  accounts  being  kept  of  the  amounts  drawn,  and 
this  amount  was  listed  under  his  schedule  of  income  for  taxation  as  salary 
and  v\'ages,  he  was  an  employe,  even  though  he  was  not  included  in  the  pay 
roll  upon  which  the  insurance  premium  was  paid.  Howard  v.  George  Howard, 
Inc.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  11,  p.  14. 

16  Id.  p.  20. 

Where  an  employ^  was  hired  at  a  fixed  salary  for  fixed  hours  per  day, 
during  which  time  his  employer  had  full  direction  and  control  over  his  work, 
but  was  allowed  a  commission  on  all  new  business  which  he  was  able  to  get 
for  his  employer,  not  neglecting  any  assigned  duties  to  search  for  such  new 

17  In  re  Rheinwald,  168  App.  Div.  425,  153  N.  Y.  Supp.  598. 

18  Piece  workers,  who  are  not  independent  contractors,  with  a  chance  to 
gain  or  lose  upon  the  employment  of  others,  are  employes  to  the  same  extent 
as  if  they  were  working  for  wages.    Malott  v.  Healey,  2  Cal.  I.  A.  C.  Dec.  103. 

19  Gove  V.  Royal  Indemnity  Co.,  223  Mass.  187,  111  N.  E.  702. 


173  PERSONS   ENTITLED  TO   COMPENSATION  §    49 

or  is  a  student  workman,^"  or  that  he  is  an  officer  or  director  of  the 
corporation  employing  him.-^  It  is  essential,  however,  that  some 
wages  be  in  fact  paid  or  payable.^^  The  fact  that  one  is  a  director 
of  a  bank  gives  him  no  right  to  compensation  as  an  employe 
thereof.^^ 

business,  the  arrangement  on  a  commission  basis  did  not  create  a  dual  relation- 
ship, and  he  was  an  esuployg,  regardless  of  which  work  he  was  doing  at  the 
time  of  the  injury.    Cameron  v.  Pillsbury  (Cal.)  159  Pac.  149. 

2  0  Rulings  Wash.  Ins.  Com.  1915,  p.  16. 

21  Craycroft  v.  Cray  ?rcft-Heri-old  Brick  Co.,  2  Cal.  I.  A.  C.  Dec.  654. 

An  officer  of  a  corporation,  even  though  he  be  the  principal  stockholder,  is 
not  debarred  from  compensation  by  that  reason  alone.  Kennedy  v.  Kennedy 
Mfg.  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  5,  p.  12.  An  officer  and  director  of  a 
company  is  nevertheless  an  employe  of  the  company,  where  he  receives  regular 
wages  and  performs  the  ordinary  duties  of  an  employ^  of  the  business.  Bowne 
v.  a.  W.  Bowne  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  12,  p.  17.  A  mechanic, 
operating  a  machine  for  making  moldings  at  a  day  wage,  was  an  employe, 
even  though  he  was  president  and  stockholder  of  the  employing  company. 
Cantor  v.  Rubin  Musicant  Co.,  3  N.  Y.  St.  Dep.  Rep.  392. 

In  Welton  v.  Waterbury  Rolling  Mill,  1  Conn.  Comp.  Dec.  78,  it  was  held, 
where  the  claimant  had  a  contract  as  supervisor  of  defendant's  casting  depart- 
ment and  spent  half  his  time  traveling  in  the  interests  of  the  company,  that 
he  was  a  director  and  treasurer  of  the  company,  though  receiving  no  salary 
for  the  latter  duties,  did  not  preclude  him  from  being  an  employe. 

2  2  In  Loveland  v.  Parish  of  St.  Thomas  Church,  1  Conn.  Comp.  Dec.  14,  it 
was  held  that  a  choir  boy,  paid  25  cents  a  month  for  singing,  but  more  in  the 
nature  of  a  reward  for  punctuality  and  regularity  than  wages,  was  not  an 
employe.  In  Lynch  v.  Abel,  1  Conn.  Comp.  Dec.  520,  where  the  respondent 
lived  upon  a  farm  owned  by  his  father,  in  return  providing  a  home  for  his 
father,  who  occasionally  did  small  things  around  the  house,  but  received  no 
pay  and  was  under  no  obligation  to  work,  the  father  was  not  an  employ^  of 
the  respondent.  In  Varine  v.  Sargeant,  1  Conn.  Comp.  Dec.  194.  where,  after 
finishing  one  job,  the  workman  was  sent  to  a  shanty  to  wait  till  the  weather 
became  so  certain  other  work  could  be  started,  whether  or  not  he  paid  any 
board  being  disputed,  it  was  held  that  it  had  not  been  shown  that  he  had 
entered  the  employment. 

2  3  In  Burnham  v.  Thames  National  Bank,  1  Conn.  Comp.  Dec.  339,  it  was 
held  that  the  director  of  a  bank  is  not  an  employe  of  the  bank,  though  he  be 
paid  for  attendance  at  meetings,  such  pay  bearing  no  relation  to  the  amount 
or  value  of  the  work  done,  and  being  no  inducement  to  undertaking  such 


§  49  workmen's  compensation  174 

^The  California  Commission  has  held  that  where  the  corporate 
stock  is  all  in  the  hands  of  the  directors,  two  directors,  father  and 
son,  as  president  and  secretary,  being  authorized  to  exercise  full 
control  of  the  business,  the  son,  on  being  injured  while  acting  in 
the  course  of  his  employment  as  secretary,  can  recover  compensa- 
tion against  such  close  corporation ;  ^*  also  that  the  fact  that  one 
was  general  manager  on  a  salary  conclusively  showed  the  fact  of 
his  employment,  though  he  was  also  president  of  the  corporation.^^ 
A  mere  secret  intention  to  terminate  an  employment  does  not  ter- 
minate it,  in  the  absence  of  notice  or  an  abandonment  of  the  under- 
taking by  the  employe's  failure  to  perform  the  work  assigned  him.-*^ 
Convicts  from  the  different  state  penal  institutions  are  not  engaged 
in  any  contract  of  employment  within  the  meaning  of  the  Washing- 
ton Act.^^  A  seaman  under  contract  with  a  ship  is  outside  the 
scope  of  that  Act.^^ 

The  provisions  of  the  Connecticut  Act  do  not  extend  to  include 
a  prisoner  working  in  a  chair  factor}^  in  a  jail,  under  no  contract  and 
receiving  no  pay ;  the  county  receiving  a  lump  sum  from  the  chair 
factory  for  the  work  done.^** 

§  50.     New  York 

Many  of  the  statutes  define  "employe."  By  the  New  York  Act, 
"employe"  is  defined  as  "a  person  who  is  engaged  in  a  hazardous 
employment  in  the  service  of  an  employer,  carrying  on  or  conduct- 
ing the  same  upon  the  premises  or  at  the  plant,  or  in  the  course  of 

(Tillies ;    the  duties  of  the  directors  are  regulated  as  much  by  law  as  by  the 
bank,  and  they  have  no  power  individually,  except  as  a  member  of  the  board. 

24  Id. 

2  5  Rosenberg  v.  Western  Mercantile  Co.,  2  Cal.  I.  A.  C.  Dec.  673. 
2  6  Goering  v.  Brooklyn  Mining  Co.,  2  Cal.  I.  A.  C.  Dec.  141. 
2  7  (Wk.  Comp.  Act  Wlash.  §  17)  Opinions  Atty.  Gen.  Sept.  17,  1913. 
2  8  (Wk.  Comp.  Act  Wash.  ■§  4,  class  20)   Rulings  Wash.  Indus.  Ins.  Com. 
1915,  p.  12. 

29  Ryan  V.  Metropolitan  Chair  Co.,  1  Conn.  Comp.  Dec.  37. 


175  PERSONS   ENTITLED  TO   COMPENSATION  §    50 

his  employment  away  from  the  plant  of  his  employer."  '"  It  has 
been  said  that,  in  determining  who  is  an  "employe"  within  the 
meaning  of  that  Act,  only  decisions  under  it  or  similar  Acts  based 
on  the  same  identical  principles  can  be  recognized  as  controlling, 
influential,  or  even  interesting.^^  The  applicability  of  the  statutory 
enumeration  or  definitions  of  employments  deemed  entitled  to  pro- 
tection is  not  to  be  determined  narrowly,  but  rather  in  a  reasona- 
ble and  common-sense  manner,  so  as  to  render  the  Act  valid  and 
operative.^^  If  an  employe  is  hired  for  work  exclusively  and  pre- 
dominantly within  one  or  more  of  the  enumerated  occupations,  his 
right  to  compensation  for  injury  in  the  course  of  his  employment 
cannot  be  fairly  made  to  depend  on  whether  he  was  at  the  moment 
of  injury  engaged  in  an  act  clearly  constituting  the  direct  doing  of 
work  within  the  Act.^^  Thus  a  painter's  right  to  compensation  for 
injuries  sustained  in  his  daily  trade  does  not  depend  on  a  showing 
that  he  was  at  the  moment  applying  a  brush,  mixing  paints,  or 
mounting  a  scafifold.^*  If  an  employe's  duties  are  exclusively  or 
predominantly  within  an  enumerated  employment  or  employments, 
or  he  is  injured  in  doing  work  fairly  within  the  scope  of  the  ordi- 
nary fulfillment  of  such  duties,  his  injury  is  compensable,  though 
the  particular  act  he  was  doing  at  the  time  of  injury  would  not 
ordinarily  be  described  as  the  doing  of  work  enumerated  in  the 
statute.^^    To  construe  the  statute  otherwise  would  defeat  its  pur- 

30  (Wlorkmen's  Compensation  Law,  §  3)  Newman  v.  Newman,  169  App.  Div. 
745,  155  N.  Y.  Supp.  665;  Matter  of  Post  v.  Burger  &  Gohlke,  216  N.  Y.  544,  111 
N.  E.  351,  Ann.  Cas.  1916B,  158;  In  re  State  Workmen's  Compensation  Comm'n, 
Dale  V.  Saunders  Bros.,  218  N.  Y.  59,  112  N.  E.  571,  affirming  171  App.  Div. 
528,  157  N.  Y.  Supp.  1062. 

31  In  re  Rheinwald,  168  App.  Div.  425,  153  N.  Y.  Supp.  596. 

3  2  Gleisner  v.  Gross  &  Herbener,  170  App.  Div.  37,  155  N.  Y.  Supp.  946. 

3  3  Id. 

34  Id. 

3  5  Id. 

One  does  not  cease  to  be  an  employ^  because  at  certain  instants  of  time  he 
is  not  actually  engaged  in  work.  Scott  v.  Payne  Bros.,  Inc.,  85  N.  J,  Law,  446, 
89  Atl.  927. 


§  51  workmen's  compensation  176 

pose,  and  make  its  operation  and  benefits  depend  on  harsh,  arbi- 
trary, and  unworkable  distinctions,  which  would  inevitably  defeat 
its  practical  workings.^*'  Where,  however,  an  employe's  ordinary 
duties  and  customary  scope  of  activity  do  not  come  exclusively  or 
predominantly  within  the  enumerated  employments,  and  he  only 
casually  and  incidentally  does  work  falling  within  that  category, 
his  right  to  remuneration  depends  upon  whether  he  sustained  in- 
jury while  actually  and  momentarily  doing  work  named  in  the  stat- 
ute. Where  it  appears  that  the  employe  was  not  so  engaged  when 
he  met  with  injury,  he  is  not  entitled  to  compensation,  even  though 
he  at  times  did  work  embraced  within  the  Act."  That  the  work- 
man procured  his  employment  by  means  of  a  false  written  state- 
ment, in  violation  of  a  penal  statute,  did  not  prevent  him  from  be- 
ing an  "employe,"  or  the  one  employing  him  from  being  his  em- 
ployer.^ ^  The  question  whether  the  relation  of  employer  and  em- 
ploye existed  is  one  of  law,  where  the  facts  are  conceded.^^ 

§  51.    Contract  of  service 

To  constitute  one  an  employe,  it  is  essential  that  there  be  a  con- 
tract of  service,*"  an  implied  consideration  of  which  is  usually  pro- 
vision for  compensation  for  injury  to  him  arising  in  the  course  of 

3c  Gleisiier  v.  Gross  &  Herbener,  supra. 

3  7  Matter  of  McQueeney  v.  Sutphen  &  Meyer,  167  App.  Div.  528,  153  N.  Y. 
Supp.  554;  Matter  of  Kohler  v.  Frohmann,  167  App.  Div.  533,  153  N.  Y. 
Supp.  559 ;  Smith  v.  Price,  168  App.  Div.  421,  153  N.  Y.  Supp.  221 ;  Matter  of 
Parsons  v.  Delaware  &  Hudson  Co.,  167  App.  Div.  536,  153  N.  Y.  Supp.  179; 
Gleisner  v.  Gross  &  Herbener,  supra. 

3  8  (Laws  1913,  c.  816,  Consol.  Laws,  c.  67,  §§  3,  4)  Kenny  v.  Union  Ry.  Co., 
166  App.  Div.  497,  152  N.  Y.  Supp.  117. 

39  Id. 

4  0  Hillestad  v.  Indus.  Ins.  Com.,  SO  Wash.  426,  141  Pac.  913,  Ann.  Cas. 
191GB,  789,  6  N.  C.  C.  A.  763;  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915) 
p.  18. 

Where  a  county  gives  a  contract  for  the  construction  of  roads  to  a  private 
party,  the  county  is  not  liable  to  the  employes  of  the  contractor  for  injuries 


177  PERSONS   ENTITLED  TO   COMPENSATION  §    51 

his  employment  and  not  through  his  intentional  or  willful  miscon- 
duct," and  that  the  services  be  not  merely  voluntary.*^  The  requi- 
site "contract  of  service"  is  not  a  contract  "for"  services.  The  for- 
mer relationship  constitutes  one  an  employe,  and  brings  him  within 

sustained,  unless  there  is  a  contract  of  liire  between  the  county  and  the 
workmen.    Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  23. 

A  boy,  injured  while  sawing  up  lumber  to  be  used  for  the  University  Ex- 
tension department  and  paid  for  by  it,  was  not  an  employ^  of  that  depart- 
ment, where  it  was  not  a  party  to  the  hiring  of  the  boy  and  had  nothing  to 
do  with  it.    Schmitz  v.  City  of  Appleton,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  31. 

Existence  of  contract.— Where  a  qnarryman  received  beer  or  supper  from 
a  neighboring  farmer  in  return  for  helping  in  the  evening  with  the  hay- 
making, there  was  no  contract  of  service,  or  at  least  no  legal  contract. 
Kemp  V  Lewis  (1914)  7  B.  W.  C.  C.  422,  C.  A.  But  where  a  casual  laborer, 
hired  by  a  farmer  to  help  with  threshing,  was  injured  while  helping  the 
driver  of  the  machine,  who  had  been  hired  with  the  machine,  in  accordance 
with  custom,  to  remove  the  machine  from  the  farm,  he  was  injured  in  the 
farmer's  employ.  Newson  v.  Burstall  (191.5)  S  B.  W.  C.  C.  21,  C.  A.  Con- 
necticut. Where  a  small  boy  was  in  the  habit  of  daily  assisting  a  grocer's 
"employt5  to  deliver  packages,  going  with  the  wagon  and  taking  the  packages 
into  the  house,  while  the  driver  remained  in  the  wagon,  and  receiving  his 
reward  in  the  way  of  candy  and  fruit  from  the  store,  there  was  no  contract 
of  employment,  and  he  was  not  an  employe  within  the  Act.  Taylor  v.  New 
Tork  Supply  Co.,  1  Conn.  Comp.  Dec.  1S2. 

41  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245. 

42  That  the  contractee,  a  carpenter  by  trade,  was  injured  while  voluntarily 
aiding  the  contractor,  did  not  make  him  an  employe  of  the  contractor.  Ar- 
tenstein  v.  Employers'  Liability  Assur.  Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases 
699  (Decision  of  Com.  of  Arb.). 

Whether  services  merely  voluntary. — Where  a  carpenter  voluntarily  works 
on  a  church  building,  which  is  being  constructed,  in  the  mere  hope  that  he 
may  be  later  hired  if  seen  on  the  job,  and  he  is  permitted  so  to  work  by  a  mem- 
ber of  the  church,  he  was  not  in  the  employ  of  the  owners  or  builders  of  the 
church,  in  the  absence  of  any  ratification  by  them.  Steiman  v.  Sfard,  2 
Cal.  I.  A.  C.  Dec.  1018.  But  where  the  members  of -a  partnership  enter  into 
a  contract  with  a  person,  by  which  the  latter  is  to  install  certain  machinery 
at  his  own  expense,  and  one  of  the  partners  living  at  the  place  of  business 
aids  in  unloading  a  wagon  containing  machinery,  billed  to  the  contractor, 
and  is  injured  by  an  accident  while  so  doing,  such  evidence  is  insufficient  to 
show  that  the  partner  was  at  the  time  of  the  accident  an  employe  of  the 
contractor.  Anderson  v.  Perew,  2  Cal.  I.  A.  C.  Dec.  (Bulletins  1915)  736. 
HON.COMP. — 12 


§  51  workmen's  compensation  178 

the  Act,  while  the  latter  relationship  makes  one  an  independent  con- 
tractor— that  is,  a  self-serving  employe — and  excludes  him  from 
the  Act.*^  The  contract  of  service  need  not  be  express,  but  may 
be  implied,**  as  where  a  substitute  is  engaged  by  an  employe  in 
accordance  with  a  well-established  custom,*^  or  it  may  arise  from 
the  ratification  of  an  unauthorized  employment  of  a  workman  by  a 
subordinate.*^  It  is  immaterial  whether  the  employment  was  un- 
der a  contract  concededly  valid  as  to  both  parties,  or  under  a  con- 

43  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  18. 

41  Where  the  applicant  had  on  several  occasions  been  employed  by  the 
hour  by  defendant,  and  on  the  day  of  the  accident  was  asked  by  the  driver 
of  one  of  the  defendant's  auto  trucks  to  assist  him,  the  driver  telephoning 
to  defendant's  office  for  permission  to  employ  the  applicant,  and  the  appli- 
cant standing  by  and  understanding  that  the  employment  was  authorized, 
there  was  at  least  an  implied  employment  by  defendant.  Gallagher  v.  Fed- 
eral Transfer  Co.,  1  Cal.  I.  A.  C.  Dec.  39.  Where  a  building  manager  em- 
ploys A.  to  reshingle  a  building  by  the  day,  with  permission  to  hire  B.  to 
help  him,  and  A.  finds  that  he  cannot  get  B.  to  do  the  work,  and  employs  C. 
without  the  consent  of  the  employer,  C.  is  in  the  employ  of  the  manager. 
Petersen  v.  Pellasco,  2  Cal.  I.  A.  C.  Dec.  (Bulletins  1915)  199. 

Where  the  claimant,  employed  by  the  owner  of  the  premises  on  which  the 
defendant  was  having  its  work  done  as  a  general  handyman,  had  been  dis- 
charged by  the  owner,  but  continued  to  work  for  the  defendant  at  the  re- 
quest of  one  of  its  employes,  for  whom  he  had  done  work  with  the  permis- 
sion of  the  owner  while  in  his  employ,  and  was  injured  five  days  after  his 
former  employment  had  ceased,  he  was  an  employe  of  the  defendant.  Ga- 
lelli  V.  Magnesite  Products  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  12. 

4  5  Where  it  is  an  established  custom  for  a  waiter  to  get  a  substitute  occa- 
sionally, providing  he  is  acceptable  to  the  steward,  and  a  substitute  is  in- 
jured while  at  work,  without  the  employer's  knowledge  or  there  being  any 
express  contract  of  employment,  the  substitute  is  impliedly  an  employe  of 
such  employer.    Clark  v.  Morrison  &  Burns,  2  Cal.  I.  A.  C.  Dec.  90. 

46  Where  a  railroad  company  had  two  roundhouse  men  on  duty  at  night, 
and,  one  of  them  quitting,  the  other  hired  claimant,  telling  him  the  next 
morning  that  he  could  not  work  any  longer  unless  hired  by  a  certain  secre- 
tary, and  the  company  paid  him  the  regular  wages  for  his  work  and  $25 
in  compromise  adjustment  for  an  injury  received  during  the  night,  such 
acts  constituted  a  ratification  of  the  employment  without  authority,  and 
made  the  workman  an  employe  of  the  company.  McCutcheon  v.  Marinette, 
Tomahawk  &  Western  R.  R.  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  13. 


179  PERSONS   ENTITLED  TO   COMPENSATION  §    51 

tract  voidable  at  the  election  of  the  employer,  or  whether  the  lia- 
bility of  the  employer  for  wages  v/as  fixed  or  determinable  under 
quantum  meruit/^  A  contract  of  service  does  not  arise  from  the 
existence  of  the  relation  of  landlord  and  tenant,*^  carrier  and  pas- 
seng-er/''  bailor  and  bailee,^**  from  the  rendition  of  professional  serv- 
ices,^' from  a  partnership  relation,^-  from  the  performance  of  man- 

47  Kenny  v.  Union  Ry.  Co.,  166  App.  Div.  497,  152  N.  Y.  Supp.  117. 

4  8  Where  a  steel  tester  making  £2  a  week  obtained  an  agreement  with 
his  employers  which  allowed  him  to  live  in  a  cottage  near  by  without  pay- 
ing rent,  in  return  for  which  he  saw  to  the  cleaning  of  the  offices  (his  daugh- 
ters doing  the  work),  and  was  killed  by  gas  which  escaped  from  the  offices 
into  his  bedroom,  there  was  no  contract  of  service.  Wray  v.  Taylor  Bros. 
&  Co.,  Ltd.   (1913)  6  B.  W.  C.  C.  529,  C.  A. 

49  Where  one  seeking  employment  visited  defendant's  office  and  was  di- 
rected by  the  person  in  charge  thereof  to  go  to  defendant's  camp,  and  where 
he  did  so,  riding  on  defendant's  logging  train,  and  was  injured  before  leav- 
ing the  vicinity  of  the  train,  without  having  done  any  work  or  received  any 
pay  from  the  defendant,  the  relation  between  the  parties  was  that  of  passen- 
ger and  carrier,  and  not  employer  and  employe.  Susznik  v.  Alger  Logging 
Co.,  76  Or.  189,  147  Pac.  922. 

5  0  The  fact  that  the  driver  of  a  taxicab  was  allowed  to  keep  75  per  cent, 
of  his  receipts,  minus  the  price  of  the  petrol  he  used,  and  that  he  was  very 
little  or  not  at  all  under  the  control  of  the  owners,  although  he  wore  a  uni- 
form they  furnished,  and  although  they  used  the  words  "servant"  and  "dis- 
missal" in  their  posted  notices,  was. held  sufficient  evidence  that  he  was  not 
a  workman,  but  a  bailee.  Smith  v.  General  Motor  Cab  Co.,  Ltd.  (1911)  A. 
C.  ISS.  The  fact  that  the  driver  of  a  taxieab  was  allowed  to  retain  25  per 
cent,  of  his  day's  receipts,  minus  the  value  of  the  petrol  he  had  used,  was  no 
evidence  of  a  contract  of  service,  the  relation  probably  being  one  of  bail- 
ment.   Doggett  v.  Waterloo  Taxieab  Co.,  Ltd.  (1910)  3  B.  W.  O.  C.  371,  C.  A. 

51  There  was  no  contract  of  service  where  a  laundry  girl  taught  music  to 
a  neighbor's  children,  for  which  she  received  pay  (Simmons  v.  Heath  Laun- 
dry Co.  [1910]  3  B.  W.  C.  C.  200);  where  for  compensation  a  lecturer  was 
explaining  the  different  parts  of  an  airship  (Waites  v.  Franco-British  Exhibi- 
tion, Inc.  [1910]  2  B.  W.  C.  C.  199) ;  or  where  a  board  of  guardians  em- 
ployed a  doctor  (Murphy  v.  Enniscorthy  Board  of  Guardians  [1910]  2  B.  W. 
C.  C.  291,  C.  A.) ;  but  a  man  playing  professional  football  for  his  club  was 
under  a  contract  of  service  (Walker  v.  Crystal  Palace  Football  Club,  Ltd. 
[1910]  3  B.  W.  C.  C.  51,  C.  A.).    Where  the  employer  directs  and  controls  the 

5  2  See  note  52  on  following  page. 


§  51  workmen's  compensation  180 

ual  labor  without  subjection  to  the  alleged  employer's  control,®^  or 
where  one  sails  on  a  ship  on  the  sharing  system  without  being  sub- 
ject to  the  owner's  control/*  or  where  a  workman's  son  is  engaged 

route  of  a  vaudeville'  performer,  time  of  performance,  and  manner  of  put- 
ting on  the  act,  the  performer  is  under  contract  of  service.  Her  vocation  is 
not  to  be  classed  with  such  professional  services  as  are  rendered  by  law- 
yers and  physicians.  Howard  v.  Republic  Theater,  2  Cal.  I.  A.  C.  Dec. 
(Bulletins  1915)  514. 

52  A  member  of  a  partnership,  who  performs  services  for  the  partnership, 
for  which  he  receives  money  designated  as  "wages,"  is  not  an  employe  of  the 
partnership.     In  re  C.  E.  Cooper,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  ISO. 

Where  the  owner  of  several  teams  agrees  with  applicant  that  he  may  take 
a  team  and  find  work  for  it  with  himself  as  driver,  the  team  to  be  fed  by 
the  owner,  and  the  earnings  and  losses  to  be  divided  equally,  the  parties  are 
copartners,  not  employer  and  employe.  Sayers  v.  Girard,  1  Cal.  I.  A.  C.  Dec. 
352. 

In  Ferranti  v.  Kennedy,  1  Conn.  Comp.  Dec.  196,  where  a  mason  and  his 
helper,  working  together,  agreed  to  do  a  certain  piece  of  work  for  $75,  and 
between  themselves  agreed  that  each  should  draw  union  wages  according  to 
bis  trade,  and  that  the  remainder  should  be  divided  equally,  they  were  held 
to  be  partners,  and  there  was  no  contract  of  employment. 

A  partner,  although  he  worked  as  a  foreman  and  received  a  compensation 
for  his  work,  was  not  a  workman  within  the  Act  of  1S97.  Ellis  v.  Ellis  & 
Co.  (1905)  7  W.  C.  C.  97  C.  A,  (Act  of  1S97).  Where  a  trustee,  who  was  clos- 
ing up  a  business,  hired  one  of  the  former  partners  to  work  with  him  for 
half  an  hour  each  day,  and  promised  to  give  him  a  part  of  any  sum  which 
might  be  left  of  the  business,  but  exercised  no  control  of  him,  there  was  no 
contract  of  service.  Pears  v.  Gibbons  (Nelson,  third  party),  (1913)  6  B.  W. 
C.  C.  722,  C.  A.  But  where  a  man,  who  had  been  employed  by  another  work- 
man in  charge  of  a  boat  which  made  a  business  of  carrying  cargo  from  fish- 
ing vessels  to  the  ports,  and  who  like  the  other  received  as  pay  a  third  of 
the  gross  earnings,  and  who  was  not  liable  for  losses,  but  was  compelled  to 
obey  the  orders  of  the  owners,  was  drowned,  it  was  held  that  he  was  a  work- 
man. Jamieson  v.  Clark  (1910)  2  B.  W.  C.  C.  22S,  Ct.  of  Sess.  Nor  does  the 
owning  of  shares  in  the  vessel  keep  the  master  of  the  ship  from  being  a  work- 
man, a  shareholder  not  being  a  partner.  Carswell  v.  Sharpe  et  al.  (1910)  3 
B.  W.  C.  C.  552,  Ct.  of  Sess. 

5  3  See  §  66,  post. 

5  4  There  was  no  contract  of  service  with  the  owner,  where  the  master  em- 
ployed and  paid  the  crew,  and  carried  any  cargoes  that  he  pleased,  receiving 
as  his  compensation  two-thirds  of  the  gross  earnings  (Boon  v.  Quance  [No. 
1],  [1910]  3  B.  W.  C.  C.  106,  C.  A.) ;  where  a  vessel's  captain  was  paid  half  the 


181  PEKSONS   ENTITLED  TO   COMPENSATION  §    51 

by  the  workman  to  help  him  in  his  own^^  or  his  employer's  busi- 
ness.^^  Whether  a  contract  of  service  arises  from  the  performance 
of  work  given  out  of  charity  depends  on  the  circumstances  of  the 
particular  case.^'' 

gross  receipts  after  port  charges  had  been  paid,  and  had  charge  of  the  hir- 
ing and  paying  of  the  crew,  and  was  free  to  trade  with  any  ports  he  chose 
(Hughes  V.  Postlethwaite  [1911]  4  B.  W.  C.  C.  105,  C.  A.)  ;  where,  in  a  case 
involving  the  drowning  of  the  master  of  a  ship,  it  appeared  that  the  ship's 
captain  paid  all  disbursements  and  expenses,  receiving  for  it  two-thirds  of 
the  gross  receipts  (Jones  v.  Ship  Alice  and  Eliza  [Owners  of],  [1910]  3  B.  W. 
C.  C.  495,  C.  A.) ;  or  where  a  mate  of  a  ship,  which  was  sailed  on  the  sharing 
system,  was  engaged  by  the  captain  and  promised  as  pay  a  part  of  the  freight 
(Hoare  v.  Barge  Cecil  Rhodes  [Owners  of],  [1912]  5  B.  W.  C.  C.  49,  0.  A.). 
But  there  was  such  contract  of  service  with  the  owner,  where  a  man,  who 
was  employed  as  captain  of  a  vessel  to  use  it  "on  the  best  paying  trade  for 
the  benefit  of  all  concerned,"  employed  and  paid  the  crew  of  the  ship,  re- 
ceiving for  the  purpose  and  his  own  compensation  two-thirds  of  the  gross 
receipts  (Kelly  v.  S.  S.  Miss  Evans  [Owners  of],  [1913]  6  B.  W.  C.  C.  916,  C. 
A.) ;  where  the  owner  fixed  the  route,  freight,  and  destination,  although  the 
captain,  the  person  injured,  received  a  share  of  the  profits  as  remuneration, 
and  out  of  it  paid  the  wages  of  the  mate  and  a  part  of  those  of  another  hand 
(Smith  V.  Horlock  [1913]  6  B.  W.  C.  C.  638,  O.  A.) ;  and  where  the  mate  of 
a  ship  was  drowned  at  sea,  and  it  was  alleged  that  the  vessel  sailed  on  the 
sharing  system,  but  the  only  facts  proven  were  that  defendants  owned  the 
ship  on  which  the  man  was  mate  (Victoria  [Owners  of  Ship]  v.  Barlow  [1912] 
5  B.  W.  C.  C.  570,  C.  A.). 

5  5  A  son,  who  worked  for  his  father  and  lived  with  him,  although  paying 
for  board  and  lodging,  and  who  was  injured  on  a  journey  he  was  making  for 
his  father's  business,  was  not  a  workman.  McDougall  v.  McDougall  (1911) 
4  B.  W.  C.  C.  373,  Ct.  of  Sess. 

56  A  timber  merchant,  who  had  contracted  with  a  workman  to  fell  some 
timber  he  had  bought  and  agreed  to  carry  away,  was  not  liable  as  a  prin- 
cipal for  an  injury  to  the  workman's  son,  engaged  by  the  workman  to  help 
in  the  work,  since  the  son  was  not  a  "workman."  Marks  v.  Carne  (1910)  2 
B.  W.  0.  C.  186,  C.  A. 

57  A  man  working  for  the  Central  (Unemployed)  Body  of  London  under  the 
Unemployed  Workmen  Act  of  1905  is  under  a  contract  of  service,  and  upon 
injury  by  accident  is  entitled  to  recover.  Porton  v.  Central  (Unemployed) 
Body  for  London  (1910)  2  B.  W.  C.  C.  296,  C.  A.  A  workman  has  been  held 
to  be  under  a  contract  of  service  while  doing  work  which  he  obtained  through 
a  distress  committee  serving  under  the  Unemployed  Workmen  Act  of  1905. 


§  51  workmen's  compensation  182 

Where  it  does  not  appear  that  the  employe's  misstatement  of  his 
name  and  age  induced  the  employer  to  enter  into  the  employment 
contract,  such  misrepresentation  does  not  constitute  fraud  such  as 
will  relieve  the  employer  from  liability.^^ 

§  52,     State  employes 

Neither  the  regents  of  the  Universit}^  nor  the  state  board  of  agri- 
culture come  within  the  Michigan  Workmen's  Compensation  Act 
by  reason  of  the  provision  that  the  state  shall  be  subject  to  the 
Act;  and  hence  an  employe  of  the  Agricultural  College  is  not  an 
employe  of  the  state,  where  the  College  has  not  voluntarily  come 
within  the  Act.^^  Regular  employes  of  the  state  working  upon 
state  highways  come  within  the  Washington  Act.*'"  Where  a  mem- 
ber of  the  California  National  Guard  is  injured  by  an  accident  aris- 
ing out  of  his  employment  and  caused  by  the  falling  of  his  horse, 
on  which  he  was  riding  while  on  duty,  he  is  entitled  to  compensa- 
tion for  the  resulting  disability ,^^  A  school-teacher  employed  to 
supervise  gymnasium  classes  in  a  state  imbecile  school  of  Connecti- 
cut is  an  employe  of  the  state,  and  the  Compensation  Act  applies 
to  injuries  received  in  her  employment.^- 

Gilroy  v.  Mackie  et  al.  (Leitb  Distress  Committee),  (1010)  2  B.  W.  C.  C.  2G9, 
Ct.  of  Sess.  Where  a  blind  man  injured  while  working  in  an  industrial  in- 
stitute for  blind  people,  which  institution  was  partly  supported  by  charity, 
and  which  paid  him  5s.  a  month  over  his  board  and  lodging,  he  was  under  a 
contract  of  service.  Macgillivray  v.  Northern  Counties  Institute  for  the 
Blind  (1911)  4  B.  W.  C.  C.  429,  Ct.  of  Sess. 

■^Tiere  a  man  worked  in  a  labor  yard  maintained  by  a  charitable  institu- 
tion, so  that  unemployed  workmen  could  earn  their  board  and  lodging,  and 
sometimes  trifling  sums  besides,  there  was  no  evidence  of  a  contract  of 
service.  Burns  v.  Manchester  &  Salford  Wesleyan  Mission  (1909)  99  L.  T. 
581,  C.  A. 

5  8  Havey  v.  Erie  R.  Co.,  87  N.  J.  Law,  444,  95  Atl.  124. 

5  9  (Pub.  Acts  1912  [Ex.  Sess.]  No.  10,  pt.  1,  §  5)  Agler  v.  Michigan  Agricul- 
tural College,  181  Mich.  559,  148  N.  W.  341. 

60  (Wk.  Comp.  Act,  Wash.  §  17)  Opinion  Atty.  Gen.  Sept.  17,  1913. 

«i  Peterson  v.  State  of  California,  2  Cal.  I.  A.  C.  Dec.   (Bulletins  1915)  48. 

62  Skinner  v.  Connecticut  School  for  Imbeciles,  1  Conn.   Comp.  Dec.  106. 


183  PERSONS   ENTITLED  TO   COMPENSATION  §    53 

§  53.     Municipal  employes 

Jurors,  since  they  are  not  under  any  contract  of  hire,  express  or 
implied,  with  the  county,  and  are  not  subject  to  its  control  or  su- 
pervision, are  not  employes  of  the  county.*'^  Clerical  employes  in 
the  office  of  the  city  clerk  are  not  employes  of  the  city  in  conduct- 
ing a  light  and  water  plant  as  contemplated  by  the  Kansas  Act.*^^ 
Employes  under  civil  service  appointment  are  not  under  the  Wash- 
ington Act.®^  A  horseman  and  trained  member  of  a  fire  company, 
who  was  classified  as  in  the  "official  service"  and  not  in  the  "labor 
service,"  has  been  held  not  to  belong  to  the  class  of  city  employes 
entitled  to  compensation  under  the  Massachusetts  Act  as  "laborers, 
workmen  and  mechanics."  ^®  But  a  fireman  or  policeman  is  an  em- 
ploye of  the  city  in  Minnesota,  where  he  was  in  the  service  of  the 
city  and  not  appointed  for  a  regular  term  of  office."'^  County  engi- 
neers and  laborers  employed  by  the  county  are  employes  under  the 
Iowa  Act.^^  A  civil  engineer,  appointed  by  a  Minnesota  district 
court  to  supervise  the  construction  of  a  judicial  ditch,  is  an  employe 
of  the  counties  interested  in  the  construction  of  the  ditch.*'®  The 
source  from  which  the  money  for  carrying  on  work  on  the  roads 

6  3  (Laws  1913,  c.  467,  §  34,  subd.  1  [Gen.  St.  1913,  §  8230])  Op.  Atty.  Gen. 
on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  27. 

6  4  (Wk.  Comp.  Act,  §  6,  Laws  1911,  c.  218)  Udey  v.  City  of  Winfield,  97 
Kan.  279,  155  Pac.  43. 

6  5  (Wk.  Comp.  Act,  Wash.  §  17)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  23. 

6  6  Devney  v.  City  of  Boston,  223  Mass.  270,  111  N.  E.  788. 

A  laborer  ordinarily  is  a  person  without  particular  training,  who  is  em- 
ployed at  manual  labor  under  a  contract  terminable  at  will,  while  workmen 
and  mechanics  broadly  embrace  those  who  are  skilled  users  of  tools.  Oliver 
V.  Macon  Hardware  Co.,  98  Ga.  249,  25  S.  E.  403,  58  Am.  St.  Rep.  300;  Ellis 
V.  U.  S.,  206  U.  S.  246,  27  Sup.  Ct.  600,  51  L.  Ed.  1047,  11  Ann.  Cas.  589, 
Breakwater  Co.  v.  U.  S.,  183  Fed.  112,  114,  105  C.  C.  A.  404. 

6  7  State  ex  rel.  City  of  Duluth  v.  District  Court  (Minn.)  158  N.  W.  790,  791. 

6  8  (Code  Supp.  1913,  tit.  12,  c.  8a,  §  2477ml6[b])  Op.  Sp.  Counsel  to  Iowa 
Indus.  Com.   (1915)  p.  7. 

69  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  13,  p.  31. 


§    54  WORKMEN*S  COMPENSATION  184 

of  the  state  is  derived  has  no  bearing  on  the  question  of  liability, 
and  although  the  funds  consist  in  part  of  money  appropriated  by 
the  county  board  and  part  of  funds  appropriated  by  the  state,  the 
employe  being  hired  by  the  county,  the  county  is  solely  liable.'^'* 
A  prisoner  of  the  county  serving  sentence  on  a  work  farm,  his  wife 
being  paid  a  small  amount  by  the  county,  is  not  an  employe  of  the 
county.''^ 

§  54. California 

Employes  of  municipal  corporations,  entitled  to  compensation 
under  the  California  Act,  include  a  street  inspector  under  control  of 
the  city  and  paid  indirectly  out  of  a  paving  assessment,  but  di- 
rectly by  the  contractor,"^  a  street  commissioner,  a  manager  of  wa- 
terworks,''^ a  substitute  fireman  appointed  by  a  municipal  officer, 
where  his  services  are  accepted  and  paid  for  by  the  city,^*  or  his 
appointment  is  according  to  an  established  custom,  though  he  be 
not  under  the  civil  service  rules,''^  a  deputy  marshal,  who  has  acted 
as  such  and  been  paid  therefor  by  the  city,  though  his  appointment 
has  never  been  ratified  or  approved  as  required  by  law,''®  and  a 
deputy  appointed  by  a  town  marshal  and  under  control  of  the  town 
authorities,  though  he  is  not  on  the  town  pay  roll.'^^     Where  a  city 

70  Id. 

71  Id.  p.  32. 

7  2  Barron  v.  City  of  Venice,  2  Cal.  I.  A.  C  Dec.  25. 

7  3  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  8. 

74  The  appointment  by  a  municipal  officer  of  a  substitute  fireman,  the  ac- 
ceptance of  the  fireman's  services,  and  payment  of  his  wages  by  the  munici- 
pality make  him  an  "employe,"  though  he  be  not  under  the  civil  service  rules. 
Campbell  v.  City  of  Los  Angeles,  2  Cal.  I.  A.  C.  Dec.  300. 

7  5  Where  it  is  customary  for  a  battalion  fire  chief  to  appoint  a  substitute 
fireman  in  place  of  a  fireman  on  leave  of  absence,  a  substitute  so  appointed 
and  injured  was  entitled  to  disability  compensation,  though  the  civil  service 
rules  neither  permitted  nor  prohibited  such  employment.     Id. 

7  6  Olsen  v.  Rogers  Development  Co.,  2  Cal.  I.  A.  C.  Dec.  586. 

7  7  Eastman  v.  State  Compensation  Insurance  Fund,  2  Cal.  I.  A.  C.  Dec.  390. 


185  PERSONS  ENTITLED  TO   COMPENSATION  §    55 

marshal  places  his  son  in  charge  of  a  pump,  which  it  is  the  mar- 
shal's duty  to  care  for,  and  the  son  is  injured,  compensation  sought 
against  the  city  must  be  denied,  if  it  does  not  appear  that  the  mar- 
shal had  express  authority  to  employ  his  son.'^^  The  director  of  an 
irrigation  district  is  an  employe  within  the  meaning  of  this  Act.^'' 
Where  a  city  charter  provides  for  creating  and  maintaining  a  re- 
lief, health,  life  insurance,  or  pension  fund  for  municipal  employes, 
and  such  system  covers  the  subject  of  compensation  for  accidental 
injury  or  death  in  line  of  duty,  such  charter  provisions,  not  the 
Compensation  Act,  govern  the  city's  liability  to  employes  or  their 
dependents  covered  by  it;  the  Compensation  Act  being  excluded 
from  operation  by  virtue  of  section  6  of  article  11  of  the  Constitu- 
tion.^o 

§  55.     Federal  employes 

An  "artisan,"  within  the  original  federal  Act,  continued  in  force 
as  to  injuries  prior  to  the  Act  of  1916,  is  one  who  practices  an  indus- 
trial art,  a  trained  workman,  a  superior  mechanic.*^  The  term 
"laborer,"  though  not  so  easily  susceptible  of  accurate  definition, 
was  evidently  used  by  Congress  to  designate  men  who  do  work 
requiring  little  skill,  as  distinguished  from  artisan.^-     These  terms 

7  8  Noouan  v.  City  of  Ferris,  2  Cal.  I.  A.  C.  Dec.  89. 

7  9  Kiernan  v.  Turlock  Irrigation  District,  2  Cal.  I.  A.  C.  Dec.  259. 

80  Crehan  v.  City  of  Los  Angeles,  1  Cal.  I.  A.  C.  Dec.  252. 

81  In  re  Grant,  Op.  Sol.  Dept.  of  L.  94. 

8  2  The  ordinary  and  popular  understanding  of  the  word  "laborer"  accords 
with  the  definition  given  by  the  Standard  Dictionary,  whereby  a  laborer  is 
described  as  "one  who  performs  physical  or  manual  labor  requiring  little  skill 
or  training  other  than  regular  domestic  servants,  one  who  gains  a  living  by 
manual  toil,"  and  the  definition  given  by  the  dictionary  accords  with  the 
view  taken  by  probably  a  decided  majority  of  the  courts.  24  Cyc.  810  et  seq. 
According  to  general  understanding,  the  occupation  of  a  laborer  is  distin- 
guished from  other  occupations  by  the  fact  (1)  that  his  work  is  essentially 
physical  and  toilsome ;  (2)  that  it  makes  a  demand  primarily  upon  his  physi- 
cal or  mechanical  powers  and  not  upon  his  intellectual  faculties  except  in  a 


§  55  workmen's  compensation  186 

have  been  determined  to  include  a  storekeeper  in  the  Canal  Zone,®^ 
an  inspector  whose  duties  involved  no  manual  labor,^*  a  messen- 

miuor  degree;  (3)  tliat  it  requires  on  his  part  relatively  little  skill,  except 
of  a  manual  or  mechanical  sort,  and  relatively  little  training,  except  such  as 
comes  from  examples  and  experience;  (4)  that  it  calls  for  the  exercise  of 
little  or  no  independent  judgment  or  discretion ;  and  (5)  that  it  is  performed 
by  rule  of  thumb  or  under  the  immediate  direction  of  a  superior.  In  re 
Grant,  Op.  Sol.  Dept.  of  L.  94. 

In  its  ordinary  and  usual  acceptation,  the  word  carries  with  it  the  idea 
of  actual  physical  and  manual  exertion  or  toil.  Farinholt  v.  Luckhard,  90 
Va.  936,  21  S.  E.  817,  44  Am.  St.  Rep.  953.  A  laborer  is  one  who  labors  with 
his  physical  powers  in  the  service  of  and  under  the  direction  of  another  for 
fixed  wages.  Blanchard  v.  Railroad  Co.,  87  Me.  241,  32  Atl.  890.  A  laborer  is 
one  whose  work  depends  upon  mere  physical  power  to  perform  ordinary 
manual  labor,  and  not  one  engaged  in  services  consisting  mainly  of  work 
requiring  mental  skill  or  business  capacity,  and  involving  the  exercise  of  the 
intellectual  faculties.  Klin  3  v.  Russell,  113  Ga.  1085,  39  S.  E.  477.  Primarily 
a  clerk  in  a  mercantile  establishment  is  not  a  laborer,  even  though  the  proper 
discharge  of  his  duties  may  include  the  performance  of  some  amount  of  man- 
ual labor.  If  the  contract  of  employment  contemplated  that  a  clerk's  serv- 
ices were  to  consist  mainly  of  work  requiring  mental  skill  or  business  ca- 
pacity, and  involving  the  exercise  of  his  intellectual  faculties  rather  than 
work  the  doing  of  which  properly  would  depend  upon  the  mere  physical 
power  to  perform  ordinary  labor,  he  would  not  be  a  laborer.  If,  on  the  other 
hand,  the  work  which  the  contract  required  the  clerk  to  do  was,  in  the  main, 
to  be  the  performance  of  such  labor  as  that  last  above  indicated,  he  would 
be  a  laborer.  Oliver  v.  Macon  Hardware  Co.,  98  Ga.  249,  25  S.  E.  403,  58 
Am.  St.  Rep.  300.  "Laborer"  should  be  construed  according  to  its  common 
acceptation,  and  to  mean  men  who  do  work  which  requires  little  skill,  as  dis- 
tinguished from  an  artisan.  Guise  v.  Oliver,  51  Ark.  356,  11  S.  W.  515. 
When  we  speak  of  laboring  or  working  classes,  we  do  not  intend  to  include 
therein  persons  like  civil  engineers,  the  value  of  whose  services  rests  rather 
in  their  scientific  than  in  their  physical  ability.  In  one  sense  the  engineer 
is  a  laborer;  but  so  is  a  lawyer,  a  doctor,  and  a  banker,  yet  no  statistician 
has  ever  been  known  to  include  these  among  the  laboring  classes.  Railroad 
Co.  v.  Berry,  31  Tex.  Civ.  App.  408,  72  S.  W.  1049.  The  word  "laborers"  re- 
fers to  those  whose  services  are  manual  or  menial,  those  who  are  responsible 
for  no  independent  action,  but  who  do  a  day's  work  or  stated  job  under  the 
direction  of  a  superior.     Wildner  v.  Ferguson,  42  Minn.  112,  43  N.  W.  794, 

83  In  re  Inniss,  Op.  Sol.  Dept.  of  L.  81. 

84  In  re  Shetler,  Op.  Sol.  Dept.  of  L.  108;  In  re  Creamer,  Op.  Sol.  Dept. 
of  L.  109. 


187  PERSONS   ENTITLED  TO   COMPENSATION  §    55 

ger  in  the  government  printing  office  carried  on  the  clerical  roll,®^ 
and  the  master  of  a  dredge,  where  the  work  performed  was  in 
the  nature  of  that  of  a  "handy  man,"  ^^  but  not  a  ship's  drafts- 
man,^'^ the  matron  of  an  Indian  school, ^^  a  transit  man,®^  a  sur- 
veyor,''°  a  clerk  engaged  in  office  work,"  an  instrument  man  in  a 
surveying  party,  where  his  work  was  manual  and  physical,  rather 
than  clerical  or  professional, ^^  an  assistant  veterinarian,  engaged 
in  treating  sick  animals,  giving  medicine,  and  dressing  wounds, ^^ 
a  laboratory  assistant  engaged  in  making  tests  of  materials  in  a 
chemical  laboratory,^*  a  dockmaster,  having  the  care  of  a  dock  and 
the  supervision  of  the  dock  force,^^  a  "laboratory  assistant"  at  the 
Picatinny  Arsenal,^"  or  a  cement  tester  and  chemist  in  the  reclama- 
tion service,  whose  work  was  semiprofessional  in  nature."  The 
class  of  workmen  designated  by  the  term  "laborer"  has  been  de- 
termined to  include  a  policeman  or  watchman,^^  a  time  inspector,^^ 

6  L.  R.  A.  33S,  IS  Am.  St.  Rep.  495.  In  the  language  of  the  business  world, 
says  Mr.  Chief  Justice  Peters,  a  laborer  is  one  who  labors  with  his  physical 
powers,  in  the  service  and  under  the  direction  of  another,  for  fixed  wages; 
this  is  the  common  meaning  of  the  word,  and  hence  its  meaning  in  the  stat- 
ute.   Blanchard  v.  Railroad  Co.,  87  Me.  241,  32  Atl.  890. 

8  5  In  re  Ellett,  Op.  Sol.  Dept.  of  L.  112. 

8  6  In  re  Waters,  Op.  Sol.  Dept.  of  L.  110. 

87  In  re  Ripley,  Op.  Sol.  Dept.  of  L.  110. 

8  8  In  re  Humphreys,  Op.  Sol.  Dept.  of  L.  111. 

8  9  In  re  Grant,  Op.  Sol.  Dept.  of  L.  94. 
90  In  re  Sheppard,  Op.  Sol.  Dept.  of  L.  98. 
0 1  In  re  Alcee,  Op.  Sol.  Dept.  of  L.  Gl. 

0  2  In  re  Sanders,  Op.  Sol.  Dept.  of  L.  114. 
93  In  re  Brown,  Op.  Sol.  Dept.  of  L.  102. 

9  4  In  re  Ransom,  Op.  Sol.  Dept.  of  L.  103. 
95  In  re  Trahey,  Op.  Sol.  Dept.  of  L.  105. 
9  6  In  re  Miller,  Op.  Sol.  Dept.  of  L.  108. 

9  7  In  re  Fenz,  Op.  Sol.  Dept.  of  L.  116, 
9  8  In  re  Golden,  Op.  Sol.  Dept.  of  L.  68. 
9  9  In  re  Sittert,  Op.  Sol.  Dept.  of  L.  90. 


§  55  workmen's  compensation  188 

a  rigger  and  diver,^  an  employe  designated  a  messenger,  but  en- 
gaged in  work  of  the  laboring  class,^  a  sailor  working  on  a  dredge 
and  assisting  in  dredge  work,^  an  employe  appointed  as  a  special 
laborer  messenger  engaged  on  laborer  or  messenger  work,  except 
when  detailed  to  clerical  work,*  a  packer  employed  in  a  navy  yard 
storeroom,  to  handle,  arrange,  and  list  stock,^  a  "survey  man"  re- 
quired to  render  assistance  to  surveyors,®  a  working  foreman  of 
laborers,'^  though  an  acting  inspector,*  an  employe  designated  an 
inspector,  engaged  in  marking  and  passing  cross-ties,  piling,  and 
lumber,  and  without  any  duty  of  supervision  or  superintendence,'' 
but  not  a  foreman  or  superintendent,  who  directs  the  work  of  oth- 
ers and  whose  work  is  mental  and  administrative  or  executive,^" 
a  draftsman  whose  duties  resemble  those  of  a  clerk  or  artist,^^  or  a 
concrete  inspector  engaged  in  inspecting  and  directing  the  work  of 
others. ^^  In  respect  to  a  sanitary  inspector  in  the  Canal  Zone,  it 
has  been  authoritatively  said  that,  if  he  was  employed  principally 
on  account  of  his  expert  or  professional  knowledge  of  disease  germs 
and  the  like,  he  should  be  regarded  as  belonging  to  the  professional 
class,  and  the  fact  that  his  duties  required  him  to  visit  different 
parts  of  the  canal  cut  would  not  bring  him  within  the  scope  of  the 
Act,  but  that  if  he  was  employed  on  labor  which  was  essentially 

1  In  re  Lagerliolm,  Op.  Sol.  Dept.  of  L.  104. 

2  In  re  MuUins,  Op.  Sol.  Dept.  of  L.  58. 
s  In  re  Zacias,  Op.  Sol.  Dept.  of  L.  62. 
i  In  re  Adler,  Op.  Sol.  Dept.  of  L.  63. 

6  In  re  Crandall,  Op.  Sol.  Dept.  of  L.  77. 

6  In  re  Hott,  Op.  Sol.  Dept.  of  L.  89. 

7  In  re  Kline,  Op.  Sol.  Dept.  of  L.  92. 

8  In  re  Keating,  Op.  Sol.  Dept.  of  L.  91. 

9  In  re  Baker,  Op.  Sol.  Dept.  of  L.  100. 

10  In  re  Little,  Op.  Sol.  Dept.  of  L.  78. 

11  In  re  Reeves,  Op.  Sol.  Dept.  of  L.  73. 

12  In  re  Cunningham,  Op.  Sol.  Dept.  of  L.  81. 


ISO  PERSONS   ENTITLED  TO   COMPENSATION  §    57 

physical,  or  at  least  manual,  even  though  requiring  skill  in  its  per- 
formance, and  if  his  duties  required  no  more  special  knowledge  or 
training  than  an  ordinarily  intelligent  person  might  readily  ac- 
quire after  entering  upon  the  discharge  of  the  duties  of  the  position, 
he  should  be  regarded  as  of  the  laboring  class,  to  which  the  Act  ap- 
plies.^^ 

§  56.     Previous  health  of  employe 

Compensation  legislation  does  not  confine  its  protection  to 
healthy  employes.  The  previous  condition  of  health  is  of  no  conse- 
quence in  determining  the  amount  of  relief  to  be  afforded.  It  has 
no  more  to  do  with  it  than  the  employe's  lack  of  ordinary  care  or 
the  employer's  freedom  from  simple  negligence,  though  it  is  a  cir- 
cumstance to  be  considered  in  ascertaining  whether  the  injury  re- 
sulted from  the  work  or  from  disease.^* 

§  57.     Minor  employes 

The  fact  that  the  injured  employe,  in  view  of  his  youth,  is  em- 
ployed unlawfully,  does  not  bar  the  recovery  of  compensation  in 
Iowa  ^^  and  California;  ^"^  but  a  different  rule  prevails  in  Minne- 
sota,^^ in  view  of  a  provision  making  the  Act  applicable  to  minors 

13  In  re  Pickett,  Op.  Sol.  Dept.  of  L.  SO. 

14  (Wk.  Comp.  Act,  pt.  5,  §  2)  In  re  Madden,  222  Mass.  487,  111  N.  E.  379; 
Crowley  v.  City  of  Lowell,  223  Mass.  2SS,  111  N.  E.  786. 

See  §§  98,  125,  post. 

15  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  22. 

16  Where  an  employer,  either  willfully  or  in  good  faith,  employs  a  minor 
under  fifteen  years  of  age  in  violation  of  a  law  which  requires  that  a  permit 
be  secured  from  the  superintendent  of  schools  prior  to  such  employment, 
the  minor  on  being  injured  in  the  course  of  his  employment,  is  entitled  to 
compensation  notwithstanding  the  illegality  of  the  employment.  The  em- 
ployer cannot  avoid  the  requirements  of  the  Workmen's  Compensation  Act 
by  urging  that  he  had  no  lawful  authority  to  employ  the  minor.  Stauton  v. 
Masterson,  2  Cal.  I.  A.  C.  Dec.  707. 

17  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  22. 


§  57  workmen's  compensation  190 

"who  are  legally  permitted  to  work  under  the  laws  of  this  State,"  ^* 
and  also  in  Wisconsin. ^^  However,  in  the  latter  state,  where  the 
minor  is  legally  permitted  to  work,  but  cannot  legally  work  in  the  * 

hazardous  employment  at  which  he  was  injured,  he  is  within  the 
Compensation  Act.^°  Contrary  to  the  rule  applicable  to  common- 
law  actions,  compensation  cannot  be  recovered  under  the  Washing- 
ton Act  for  the  death  of  a  child  under  14  and  employed  in  a  mill  in 
violation  of  statute,  though  there  is  no  causative  connection  be- 
tween the  violation  of  the  law  and  the  death  of  the  boy.^^  The 
New  Jersey  Act  does  not  apply  in  case  of  injury  to  a  child  under 
14  years  of  age  who  is  unlawfully  employed  in  a  factory.'^^ 

An  apprentice  who  is  qualifying  himself  to  operate  an  elevator  is 
an  "employe"  within  the  Minnesota  Act.^^ 

§  58.     Employes  excepted 

Many  of  the  Acts  provide  in  substance  that  "employe"  shall  in- 
clude every  person  in  the  service  of  another  under  any  contract  of 
hire,  express  or  implied,  oral  or  written,  except  one  whose  employ- 
ment is  casual  or  is  not  in  the  "usual  course  of  the  trade,  business, 
profession  or  occupation"  of  his  employer,  or  not  for  the  purposes 
of  his  employer's  trade  or  business.^*     These,  as  well  as  other  ex- 

18  (Wk.  Comp.  Act,  §  34  [Gen.  St.  1913,  §  8230])  Pettee  v.  Noyes  (Minn.)  157 
N.  W.  995. 

10  The  Compensation  Act  does  not  govern  where  a  minor  is  employed  in 
violation  of  law.     Stetz  v.  F.  Mayer  Boot  &  Shoe  Co.  (Wis.)  156  N.  W.  971. 

2  0  St.  1913,  §  2394—7  (2)— 8;  Foth  v.  Ma  comber  &  Whyte  Rope  Co.,  161  Wis. 
.149,  154  N.  W.  369;  Milwaukee  v.  Miller,  154  Wis.  652,  144  N.  W.  188,  L.  R. 
A.  1916A,  1,  Ann.  Cas.  1915B,  847. 

2iHiIlestad  v.  Indus.  Ins.  Com.  (1914)  SO  Wash.  426,  141  Pac.  913,  Ann. 
Cas.  1916B,  789. 

2  2  Hetzel  V.  Wasson  Piston  Ring  Co.  (N.  J.)  98  Atl.  306. 

2  3  Pettee  v.  Noyes  (Minn.)  157  N.  W.  995. 

24  The  employment  was  for  the  purposes  of  the  business  within  the  Eng- 
lish Act  in  case  of  the  casual  employment  of  a  laborer  hired  to  repair  the 
roof  of  a  building  in  which  a  grocery  and  drapery  shop  were  run,  although 


I 


191  PERSONS  ENTITLED  TO   COMPENSATION  §    58 

ceptions  contained  in  the  various  Acts,  should  be  construed  reason- 
ably to  effectuate  the  legislative  intent,-^  and  should  be  held  inap- 
plicable where  the  employe  is  engaged  in  the  business  for  which  he 
was  hired  and  has  no  reason  to  think  there  is  any  change  in  the 
business,  and  where  there  is  no  change  of  employer.'*'  In  the  ab- 
sence of  a  clearly  expressed  legislative  intent  to  that  effect,  an  Act 
will  not  be  construed  to  exempt  from  its  operation  nonresident 
employes  of  alien  employers  who,  while  working  within  the  state, 
may  receive  personal  injuries  arising  out  of  and  in  the  course  of  em- 
plo3^ment.^^ 

the  upper  part  was  used  as  living  quarters  by  the  assistants  (Johnston  v. 
Monasterevan  General  Store  Co.  [1909]  2  Ir.  R.  108,  C.  A.) ;  where  a  retired 
doctor,  farming  for' profit,  hired  a  man  in  casual  employment  to  trim  some 
trees  which  seemed  liable  to  injure  a  wall  of  the  haggard,  and  he  was  injured 
while  doing  the  work  (Cotter  v.  Johnson  [1912]  5  B.  W.  C.  C.  568,  C.  A.); 
where  a  laborer  asked  a  fai*mer  to  cut  an  intervening  hedge  which  shaded 
the  laborer's  garden,  and  was  told  by  the  farmer  he  would  pay  him  to  do  it 
himself,  the  farmer  saying  he  would  use'  part  of  what  was  cut  ofE  for  hop 
poles  (Tombs  v.  Bomford  [1912]  5  B.  W.  C.  C.  338,  C.  A.) ;  but  not  where  a 
widow  managed  property,  part  her  own  and  part  in  which  she  owned  a  share, 
making  no  charge  to  her  relatives  for  looking  after  their  shares,  and  em- 
ployed a  workman  to  whitewash  some  of  the  cottages  (Bargewell  v.  Danies 
[1908]  98  L.  T.  R.  257,  C,  A.) ;  where  a  shopkeeper  employed  a  casual  laborer 
to  repair  some  buildings  occupied  by  his  tenants,  and  entirely  disconnected 
with  the  shop  (Kelly  v.  Buchanan  [1913]  47  Ir.  L.  T.  228,  C.  A.) ;  or  where  a 
workman  was  hired  to  clean  the  windows  of  a  physician's  residence,  includ- 
ing the  window  of  his  consulting  room  (Rennie  v.  Reid  [1909]  1  B.  W.  C.  C. 
324;  Ct.  of  Sess.). 

25  Panama- Pacific  International  Exposition  Co.  v.  Hopper,  1  Cal.  I.  A.  C. 
Dec.  429. 

26  (St.  1911,  c.  751,  pt.  5,  §  2)  In  re  Howard,  218  Mass.  404,  105  N.  E.  636. 
Where  an  employ^  was  engaged  in  trimming  trees  for  his  employer,  an  elec- 
tric company,  under  directions  of  the  company's  agent,  which  work  he  had 
been  hired  to  do,  the  work  was  not  "casual"  or  outside  the  "usual  course  of 
the  trade,  business,  profession  or  occupation,"  though  the  company  may  have 
no  interest  in  trimming  the  particular  tree  on  which  the  employ^  was  work- 
ing at  the  time  of  the  injury.    Id. 

2  7  The  Massachusetts  Act  does  not  disclose  such  legislative  intent.  In  re 
American  Mut.  Liability  Ins.  Co.,  215  Mass.  480,  102  N.  E.  693,  Ann.  Cas. 
1914D,  372. 


§  59  workmen's  compensation  192 

§  59.     Farm  laborers 

A  provision  excepting  "farm  laborers"  from  the  operation  of  an 
Act/^  places  outside  the  Act  one  employed  to  do  the  ordinary  work 
done  by  one  hired  by  a  farmer  to  aid  in  the  common  incidents  of 
agricultural  employment,^^  but  does  not  except  employes  working 

2  8  The  Act  was  not  intended  to  confer  its  advantages  on  farm  laborers  or 
impose  its  burden  on  farmers.    In  re  Keaney,  217  Mass.  5,  104  N.  E.  43S. 

The  Compensation  Act  does  not  apply  to  farmers.  (Code  Supp.  1913,  tit. 
12,  c.  8a)  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  pp.  9,  5. 

2  9  (St.  1911,  c.  751,  pt.  1,  §  2)  In  re  Keaney,  217  Mass.  5,  104  N.  E.  438. 

A  farmer,  operating  his  own  threshing  machine  and  using  it  exclusively  for 
his  own  private  use,  is  engaged  in  an  agricultural  pursuit,  and  therefore  ex- 
cluded.   Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  11. 

Where  a  farm  hand  is  ordered  to  haul  a  load  of  lumber  from  a  point  in  a 
city  to  a  railroad  depot  for  shipment  to  another  farm,  and  is  injured  while 
so  doing,  he  is  a  farm  laborer,  and  engaged  as  such  when  injured,  and  his 
employer  is  exempt  from  liability,  even  though  the  goods  carried  are  not  for 
use  or  connected  with  the  farm  upon  which  he  is  employed.  Ratcliff  v.  De 
Witt  Co.,  1  Cal.  I.  A.  C.  Dec.  639.  Where  one  is  employed  on  a  farm  to  milk 
the  cows  and  take  care  of  the  poultry,  he  is  engaged  in  farm  labor,  and  not 
within  the  protection  of  the  Act.  ^yolt  v.  Scripps,  1  Cal.  I.  A.  C.  Dec.  509. 
Where  a  general  farm  hand,  employed  to  cut  wood  and  do  general  work  as 
required  about  a  country  resort  and  vineyard,  lost  the  sight  of  an  eye  from 
a  flying  wedge  which  he  had  been  driving  into  a  stump  which  he  was  cut- 
ting up  for  firewood  to  be  used  in  such  resort  and  vineyard,  he  was  engaged 
in  farm  labor  at  the  time  of  injury.    Boschetti  v.  Lecas,  3  Cal.  I.  A.  C.  Dec.  39. 

Carpentry. — Where  a  carpenter  is  engaged  by  a  farmer  for  the  sole  pur- 
pose of  building  a  barn,  and  is  injured  while  working  upon  said  barn  upon 
the  farm,  he  is  not  at  the  time  of  his  accident  engaged  in  farm  labor,  and  is 
therefore  under  the  protection  of  the  Act.  Craig  v.  Hartson,  2  Cal.  I.  A.  C. 
Dec.  235.  Where  a  carpenter  by  trade  works  at  both  carpentry  and  farm 
labor,  but  is  hired  out  as  and  engaged  as  a  carpenter  when  injured,  and  was 
hired  for  the  job  of  building  a  cottage,  he  is  a  carpenter,  and  not  a  farm 
laborer.     Blaine  v.  McKinsey,  1  Cal.  I.  A.  C.  Dec.  641. 

Hay  Baling. — A  workman  engaged  in  the  operation  of  a  hay  baling  ma- 
chine on  the  ground  where  the  hay  is  produced,  although  the  employer  is  not 
a  farmer  or  an  agriculturist,  but  one  who  goes  about  the  country  baling  hay 
with  his  machine  by  the  ton  for  farmers,  is  engaged  in  farm  and  agricultural 
labor,  and  his  accidental  injuries  are  not  compensable.  Neimeyer  v.  Volger, 
2  Cal.  I.  A.  C.  Dec.  305.  Where  a  contractor  engages  in  baling  hay  with  dif- 
ferent farmers  upon  their  ranches,  and  his  employe  is  injured  while  on  the 


193  PERSONS   ENTITLED  TO   COMPENSATION  §    59 

for  one  engaged  in  a  commercial  or  other  non-agricultural  enter- 
prise,^" though  he  be  a  farmer.^^ 

A  provision  excepting  employes  engaged  in  horticulture  excludes 
an  employe  working  as  nurseryman  and  gardener  in  setting  out 
trees  and  plants  and  embellishing  a  townsite.^^  The  right  to  com- 
pensation is  determined  by  the  character  of  the  labor  actually  being 
done  when  the  accident  occurs,  or  the  major  portion  of  the  tasks 
to  be  performed,^^  rather  than  by  the  fact  that  the  employe  occa- 

farm  baling  hay  for  his  employer  and  for  the  farmer,  such  injured  employe 
is  engaged  in  fariu  labor  at  the  time  of  the  accident,  and  is  not  within  the 
protection  of  the  Act.  Vincent  v.  Louis,  2  Cal.  I.  A.  C.  Dec.  130.  Where  an 
employer  owns  a  hay  press,  which  he  moves  from  farm  to  farm,  baling  hay 
on  contract  for  the  owners  of  said  farms,  and  his  employe  is  injured  while 
working  on  the  hay  press  on  a  farm  of  a  person  for  whom  hay  is  being  baled 
on  contract,  such  employe  is  engaged  in  farm  labor  at  the  time  of  his  injury, 
and  his  employer  is  not  liable  under  the  Act.  Morris  v.  Spears,  1  Cal.  I.  A. 
C.  Dec.  317. 

30  Operators  of  threshing  machines  upon  a  commercial  basis  are  within  the 
act  when  they  thresh  other  people's  grain  for  hire.  Op.  Sp.  Counsel  to  Iowa 
Indus.  Com.  (1915)  p.  11. 

Where  a  woodchopper  is  injured  at  the  end  of  a  year's  continuous  employ- 
ment cutting  wood  on  a  40-acre  tract  of  timber  land,  one  acre  of  which  is 
under  cultivation  as  a  garden,  and  all  the  cut  wood  is  shipped  away  by  the 
employer  for  sale,  the  returns  therefrom  being  the  only  income  of  the  tract, 
the  employ^  is  not  engaged  in  farm  labor,  even  though  the  employer  is  clear- 
ing the  land  to  make  a  farm  of  it.    Pappas  v.  Warren,  2  Cal.  I.  A.  C.  Dec.  874. 

31  Where  a  farmer  owning  a  sugar  mill  goes  about  the  community  grinding 
cane  for  hire,  he  is  engaged  in  a  commercial  enterprise,  and  is  not  engaged 
in  an  agricultural  pursuit.  (Code  Supp.  1913,  §  2477m  [a])  Op.  Sp.  Counsel 
to  Iowa  Indus.  Com.  (1915)  p.  12. 

When  a  farmer  engages  in  ordinary  teaming,  such  as  hauling  water  for  a 
mine,  he  has  stepped  outside  the  exempted  classes  of  "farm,  dairy,  agricul- 
tural, viticultural  or  horticultural  labor,  stock  or  poultry  raising,  or  house- 
hold domestic  service,"  and  his  employ^  automatically  comes  within  the 
protection  of  the  Act.    Jenkins  v.  Pieratt,  1  Cal.  I.  A.  C.  Dec.  114. 

3  2  Ruprecht  v.  Dominguez  Land  Corporation,  3  Cal.  I.  A.  C.  Dec.  5. 

33  Where  a  person  is  employed  to  work  about  a  city  residence,  a  principal 
portion  of  his  duties  being  to  take  care  of  and  exercise  blooded  horses  (not 
involving  stock  raising),  but  a  minor  portion  of  his  duties  consists  in  gar- 
dening and  performing  incidental  tasks  in  connection  with  the  upkeep  of  the 

HON.COMP. — 13 


§  59  workmen's  compensation  194 

sionally  does  farm  labor.^*  The  purpose  for  which  the  work  was 
being  done  determines  its  character.  Plowing  is  commonly  farm 
labor,  as  is  also  the  clearing  of  brush  and  shrubs  to  prepare  land 
for  cultivation.^^     But  if  done  to  make  the  land  ready  for  railroad 

premises,  Tsuch  employ^  is  not  engaged  in  farm  labor,  particularly  where  at 
the  time  of  the  accident  he  is  engaged  in  exercising  horses,  and  not  in  gar- 
dening.   Cleveland  v.  Hastings,  2  Cal.  I.  A.  C.  Dec.  15. 

34  The  fact  that  an  employe,  whose  regular  trade  was  that  of  a  carpenter, 
and  who  was  employed  on  a  farm  to  do  carpentry,  sometimes  did  farm  la- 
bor, when  there  was  no  carpenter  work  to  be  done,  does  not  suffice  to  class 
him  as  a  farm  laborer.    Feehan  v.  Tevis,  2  Cal.  I.  A.  C.  Dec.  434. 

3  5  Mann  v.  Locke,  2  Cal.  I.  A.  C.  Dec.  415. 

Clearing  land. — Where  a  farmer,  clearing  his  land  of  brush  and  timber  to 
make  the  land  available  for  agricultural  purposes,  engages  a  teamster  to 
haul  the  wood  and  brush  to  towu  for  sale,  the  employe  is  engaged  in  farm 
labor  while  doing  such  work,  and  is  not  within  the  Act.  Hanson  v.  Scott,  2 
Cal.  I.  A.  C.  Dec.  730.  Where  a  person  is  employed  to  cut  and  burn  brush 
and  trees  in  clearing  land,  the  land  to  be  set  out  to  fruit  trees  when  cleared, 
he  is  engaged  in  farm  labor.  Whitney  v.  Peterson,  1  Cal.  I.  A.  C.  Dec.  308. 
Where  an  employe  was  injured  in  the  operation  of  a  portable  sawing  ma- 
chine while  cutting  cordwood  into  stove  length  on  a  farm,  the  wood  having 
been  cleared  from  the  land  incidental  to  the  operation  of  the  farm,  to  be  dis- 
posed of  by  sale  and  partly  for  farm  use,  he  was  engaged  in  farm  labor. 
IMiller  v.  Algar,  2  Cal.  I.  A.  C.  Dec.  584.  Employes  engaged  in  forestry  are, 
ordinarily,  not  within  the  classes  excluded  by  section  14  of  the  Act ;  but  in 
cases  where  the  essential  purpose  is  the  clearing  of  land  for  agriculture,  and 
not  lumbering  or  other  branches  of  forestry,  and  the  wood-sawing  is  only  a 
matter  of  disposing  of  the  by-product  of  the  clearing  of  land  for  the  purpose 
of  making  a  farm,  it  is  proper  to  regard  the  labor  of  cutting  such  wood  as 
farm  labor.  Id.  Where  land  was  presently  being  operated  as  a  dairy  farm, 
and  it  was  necessary  to  remove  old  stumps  from  a  considerable  area  to 
change  the  use  of  the  land  from  grazing  to  fruit  raising,  the  laborers  em- 
ployed for  such  purpose  were  farm  laborers,  excluded  from  the  compensation 
provisions  (sections  12  to  35,  inclusive)  under  the  definition  of  "employe"  con- 
tained in  section  14.  Martin  v.  Russian  River  Fruit  &  Land  Co.,  1  Cal.  I. 
A.  C.  Dec.  18.  In  determining  the  classification  of  employes,  as  defined  in 
section  14,  it  is  proper  to  take  into  consideration  modern  progress  and  con- 
temporary methods  in  industrial  pursuits.  The  use  of  high  explosives  and 
power  agencies  has  become,  in  a  large  measure,  incident  to  agricultural  in- 
dustry, the  use  of  blasting  powder  was  held  to  be  an  agi'icultural  use,  and  the 
laborers  employed  in  the  use  thereof  to  be  engaged  In  farm  labor.    Id. 


195  PERSONS  ENTITLED  TO   COMPENSATION  §    59 

construction,  or  for  the  construction  of  expensive  reservoirs,  dams, 
or  canals  for  irrigation  purposes,  the  workmen  so  engaged  are  not 
engaged  in  farm  labor.^^  In  Iowa,  farmers  can  make  the  Act  a 
part  of  their  contract  with  their  hired  help,  and  then  insure  their 
liability  under  such  contract."  Likewise  the  Michigan  Act  does 
not  exclude  farmers  from  accepting  the  provisions  of  the  law,  but 
exempts  them  from  its  operation  merely  in  the  sense  that  they  suf- 
fer no  harm  by  not  coming  under  it.^^ 

In  the  words  of  Chief  Justice  Rugg,  of  the  Supreme  Judicial 
Court  of  Massachusetts,  the  Massachusetts  Act  "is  a  practical 
measure  designed  for  use  among  a  practical  people.  A  farmer 
may  adopt  it  if  he  desires.  Any  contract  of  insurance  made  by  him 
under  its  terms  is  enforceable.  On  the  other  hand,  if  he  does  not 
desire  to  make  it  available  to  all  his  employes,  he  may  procure  in- 
surance for  a  limited  portion  of  them.  If  there  are  those,  separa- 
ble from  others  by  classification  and  definition,  whose  labor  is  more 
exposed  or  dangerous,  or  whom  he  may  desire  to  protect  for  any 
other  reason,  there  is  nothing  in  the  Act  to  prevent  him  from  doing 
so.  The  purposes  of  the  Act  are  such  that,  if  feasible,  it  ought  to 
be  extended  to  include  cases  within  its  scope  interpreted  in  the 

3  6  Wbere  an  employe  of  a  farmer  was  clearing  a  levee  in  a  farmer's  pro- 
tection district,  under  the  superintendence  of  the  protection  district  foreman, 
for  the  purpose  of  preparing  the  ground  to  be  raised  two  feet  by  scrapers, 
thus  enabling  the  farm  owners  to  safeguard  their  lands  against  overflow, 
and  a  willow  branch  struck  the  employe  in  the  eye,  the  employ(S  was  not  en- 
gaged in  farm  labor.  Mann  v.  Locke,  2  Cal.  I.  A.  C.  Dec.  415.  The  impound- 
ing and  distributing  to  farmers  of  water  for  irrigating  purposes  is  not  farm, 
dairy,  agricultural,  viticultural,  or  horticultural  labor,  and  an  employe  of  a 
corporation  engaged  in  such  an  occupation  is  subject  to  the  Compensation  Act. 
Matney  v.  Azusa  Irrigating  Co.,  2  Cal.  I.  A.  C.  Dec.  898.  Where  a  carpenter 
was  employed  on  a  farm  to  do  carpentry  and  other  work,  and  met  with  an 
accident  while  actually  doing  carpenter  work,  at  carpenter's  wages,  in  the 
construction  of  a  dam  for  an  artificial  lake,  such  work  was  not  farm  labor, 
and  the  employer  was  liable  for  compensation.  Feehan  v.  Tevis,  2  Cal.  I.  A. 
C.  Dec.  434. 

3  7  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  9. 

3  8  Shafer  v.  Parke,  Davis  &  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  7. 


§  60  workmen's  compensation  196 

light  of  its  purpose,  and  to  encourage  its  adoption  by  those  who 
for  reasons  of  legislative  policy  were  excepted  from  its  express 
operation.  If  construed  to  compel  farmers  to  insure  for  all  their 
laborers  if  they  undertake  to  insure  for  any  of  them,  the  inevitable 
tendency  would  be  to  discourage  resort  to  the  Act  in  any  respect."  ^® 
That  a  farmer  engaged  in  selling  produce  procured  insurance  for 
"drivers  and  helpers"  did  not  render  him  liable  under  this  Act  for 
injuries  to  a  farm  laborer.*" 

§  60.     Domestic  and  household  servants 

The  term  "domestic  servant,"  within  Acts  excluding  domestic 
and  household  servants,  means  one  who  lives  and  works  in  the 
house,  and  does  not  exclude  a  servant  whose  employment  is  out  of 
doors. *^  Whether  a  chauflfeur  is  excluded  from  the  provisions  of 
the  Act  depends  upon  the  circumstances  surrounding  each  par- 
ticular case,  and  where  he  looks  after  the  car  and  drives  it,  and 
boards  and  sleeps  on  the  premises,  he  is  excluded  as  being  a  domes- 
tic servant.  A  household  servant  is  one  who  dwells  under  the  same 
roof  with  the  family  under  circumstances  making  him  a  member 
thereof.*^  The  status  of  a  household  servant  is  determined  rather 
by  his  relation  to  the  family  than  by  his  relation  to  the  service.*^ 
For  example,  a  workman  hired  to  tend  the  furnace,  mow  the  lawn, 
and  do  odd  jobs  about  the  house  and  premises,  who  has  a  room  in 
the  house  in  which  to  sleep,  and  who  eats  at  the  family  table,  is 

30  In  re  Keaney,  217  Mass.  5,  104  N.  E.  438. 

40  Id. 

41  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  16. 

Whether  a  cliauffeur  is  excluded  from  the  provision  of  the  Act  depends 
upon  the  circumstances  surrounding  each  particular  case,  and  where  he  looks 
after  the  car  and  drives  it,  and  boards  and  sleeps  on  the  premises,  he  is  ex- 
cluded as  being  a  domestic  servant.  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act, 
Bui.  9,  p.  20. 

4  2  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  16. 

43  Id. 


197  PERSONS   ENTITLED  TO  COMPENSATION  §    60 

a  household  servant.**  On  the  other  hand,  a  chauffeur  hired  by 
the  month  to  run  the  employer's  private  automobile,  but  not  living 
under  such  conditions  as  to  constitute  him  a  member  of  the  family, 
is  not  a  household  servant.*^  Likewise  one  v^ho  is  employed  to 
perform  incidental  services  around  the  premises  and  residence  of 
his  employer,  and  not  required  to  do  anything  inside  the  house, 
and  who  does  not  live  on  the  premises,  is  not  engaged  in  "house- 
hold domestic  service,"  within  the  meaning  of  the  California  Act. 
While  it  is  doubtful  whether  the  test  of  living  in  the  employer's 
house  is  the  sole  test  of  household  service,  it  is  essential  that  he  be 
engaged  in  rendering  service  in  the  house,  such  as  cleaning,  cook- 
ing, or  washing.*®  Where  a  porter  in  a  saloon  was  sent  upstairs 
by  the  proprietor  to  wash  the  windows  in  the  apartment  above, 
where  such  employer  resided  with  his  family,  the  porter  receiving 
extra  pay  when  he  did  such  upstairs  work,  and  while  so  engaged 
fell  to  the  sidewalk  and  was  injured,  at  the  time  of  his  injury  he  was 
engaged  in  household  domestic  service.*'^  Employes  entitled  to 
compensation  under  the  California  Act  do  not  include  any  "em- 
ploye engaged  in  farm,  dairy,**  agricultural,  viticultural,  or  horti- 

44  (Code  Supp.  1913,  §  2477m  [a])  Id. 

4  5  (Code  Supp.  1913,  §  2477m  [a]  and  section  2477ml6[b])  Id. 

4  6  Cleveland  v.  Hastings,  2  Cal.  1.  A.  C.  Dec.  15. 

47  Castellotti  v.  McDonnell,  1  Cal.  I.  A.  C.  Dec.  3.51. 

4  8  Where  a  rough  carpenter  and  cement  worker  is  called  out  of  town  by 
the  owner  of  a  dairy  to  put  a  roof  on  a  reservoir  used  for  storing  water  for 
the  watering  of  the  stock,  and  is  put  to  work  repairing  a  leak  in  the  con- 
crete reservoir,  the  breaking  of  a  ladder  causing  him  to  fall  and  fracture  his 
wrist,  he  is  not  an  "employe"  as  defined  by  section  14  of  the  Compensation 
Act,  being  engaged  in  dairy  labor,  an  excepted  occupation.  Reed  v.  Winn,  2 
Cal.  I.  A.  C.  Dec.  687. 

Employes  not  engaged  in  farm  or  dairy  labor:  An  employed  engaged  in  de- 
livering milk  for  an  employer  who  buys  milk  at  wholesale  and  retails  it  to 
the  consumers.  Woodruff  v.  Peterson,  1  Cal.  I.  A.  C.  Dec.  516.  A  carpenter 
employed  by  persons  operating  a  dairy  ranch  to  go  upon  the  ranch  and  build 
a  barn,  residing  on  the  ranch  while  at  work.  Cowles  v.  Alexander  &  Kel- 
logg, 2  Cal.  I.  A.  C.  Dec.  615. 


§  61  workmen's  compensation  198 

cultural  labor,^"  in  stock  ^°  or  poultry  raising,  or  in  household  do- 
mestic service."  ^^ 

§  61.     Clerks 

Within  the  provision  of  the  Iowa  Act  that  the  term  "workman" 
means  those  engaged  in  clerical  work  only,  but  clerical  work  shall 

49  Where  a  rough  garden  laborer,  whose  duties  are  moving  and  trans- 
planting trees  and  constructing  boxes  and  framework,  strains  himself  while 
moving  soil  with  a  wheelbarrow  to  fill  in  ground  for  a  lawn,  he  is  engaged 
in  horticultural  labor.  Georgandas  v.  Panama-Pacific  International  Exposi- 
tion, 2  Cal.  I.  A.  G.  Dec.  520.  Where  a  laborer  is  in  the  employ  of  a  nursery, 
whose  duties  are  in  the  handling  of  trees  and  plants  in  transplanting  and  in 
loading  them  on  a  truck  for  the  market,  is  injured  while  being  conveyed  with 
fellow  workmen  on  the  automobile  truck,  he  is  injured  while  engaged  in  horti- 
cultural labor.  Butti  v.  MacRorie-McLaren  Co.,  2  Gal.  I.  A.  C.  Dec.  535. 
Where  a  gardener  was  employed  by  an  exposition  company  to  take  care  of 
the  lawns,  trees,  and  shrubbery  on  their  grounds,  and  was  injured  by  a 
scratch  upon  the  eyeball  while  working  as  such  gardener,  he  was  engaged  in 
horticultural  labor.  Panama-Pacific  International  Exposition  Go.  v.  Hooper, 
1  Cal.  I.  A.  C.  Dec.  429.  Where  a  gardener  was  employed  to  prune,  trim, 
and  spray  fruit  trees  growing  upon  the  residence  premises  of  the  defendant, 
who  was  a  city  employe,  he  was  engaged  in  horticultural  labor.  Bagley  v. 
James,  2  Gal.  I.  A.  C.  Dec.  842. 

5  0  Where  it  distinctly  appeared  from  the  application  itself,  corroborated 
by  the  answer,  that  the  employ^  was  killed  while  riding  a  horse,  gathering 
cattle  for  his  employer,  who  was  engaged  in  the  business  of  raising  cattle, 
the  Commission  has  no  jurisdiction;  employes  engaged  in  stock-raising  being 
excluded  by  the  Compensation  Act  from  accident  disability  benefits.  Topping 
v.  Ellis,  2  Cal.  I.  A.  C.  Dec.  382.  Where  a  cook  is  in  charge  of  a  kitchen  for 
the  feeding  of  the  hands  on  a  large  cattle  ranch  of  4,500  acres  of  grazing 
laud,  a  small  extent  of  which  was  in  grain  and  alfalfa,  he  was  engaged  in 
stock-raising,  and  therefore  the  accident  was  not  compensable.  Acrey  v. 
City  of  Holtville,  2  Gal.  I.  A.  G.  Dec.  587.  Where  an  employer,  engaged  in 
the  business  of  hog  raising  on  a  farm  in  the  outskirts  of  Los  Angeles,  in  or- 
der to  obtain  the  vegetable  refuse  matter  of  the  city  market,  had  to  enter  into 
a  contract  to  remove,  for  a  consideration,  all  garbage  from  the  market,  and 
in  the  hauling  of  such  garbage,  of  which  but  one-third  was  suitable  for  hog 
feed,  the  teamster  sustained  an  injury,  such  employ^  residing  on  the  farm 
and  having  no  other  duty  than  to  do  such  hauling,  such  injury  was  not  com- 
pensable; such  employe  being  engaged  in  stock-raising,  an  excepted  employ- 
ment.   Dana  v.  De  Turk,  2  Gal.  I.  A.  C.  Dec.  954. 

51  Wk.  Gomp.  Act  (Cal.)  §  14. 


199  PERSONS  ENTITLED  TO  COMPENSATION  §    62 

not  include  one  standing  in  a  representative  capacity  to  the  employ- 
er, a  partner  and  a  managing  corporate  officer,  being  persons  stand- 
ing in  a  representative  capacity,  are  not  entitled  to  compensation. 
Partners  are  employers  rather  than  employes.^^ 

§  62.     Casual  employes 

That  a  workman's  employment  is  casual  or  intermittent  does 
not  deprive  him  of  the  status  of  "employe,"  in  the  absence  of  an  ex- 
press statutory  provision  to  that  effect.^^  But  many  of  the  Acts  ex- 
clude from  their  protection  casual  employes,  excepting,  in  some 
states,  certain  municipal  and  other  public  employes,^*  and  it  be- 
comes material  to  determine  what  is  a  casual  employe.  Time  has 
confirmed  the  wisdom  of  the  conclusion,  early  arrived  at  by  the 
English  authorities,  that  no  hard  and  fast  definition  of  the  term 
''casual"  is  advisable.^^    The  word,  as  commonly  used,  means  some- 

52  (Code  Supp.  191o)  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  3. 

5  3  In  re  Rheinwald,  16S  App.  Div.  425,  153  N.  Y.  Supp.  598.  If  deemed 
desirable  to  withhold  compensation  from  casual  of  occasional  employes,  as 
is  done  by  the  Compensation  Acts  of  some  states,  that  is  a  matter  for  the 
Legislature,  not  for  the  court  or  Commission.     Id. 

5  4  The  proviso  of  the  Michigan  Act,  excluding  those  "whose  employment  is 
but  casual,"  does  not  apply  to  employes  of  the  state  or  of  municipal  corpo- 
rations within  the  state.  (Wk.  Comp.  Act,  pt.  1,  §  7,  subd.  2)  Agler  v.  Mich. 
Agricultural  College,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  25. 

Under  the  Ohio  Act  casual  employes  of  a  county,  city,  township,  unincor- 
porated village,  or  school  district  are  entitled  to  compensation  where  they 
are  injured  in  the  course  of  their  employment.  In  re  Barbara  Michaels,  vol. 
1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  156.  Other  casual  employes,  though  en- 
gaged in  the  usual  course  of  trade,  business,  profession,  or  occupation  of  the 
employer,  are  excluded  from  the  protection  of  this  Act.  (Wk.  Comp.  Act,  § 
14,  par.  2)  Clements  v.  Columbus  Saw  Mill  Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus. 
Com.  p.  161. 

The  defense  of  casual  employment  is  not  available  to  a  municipality,  but 
only  to  private  employers.  Brown  v.  City  of  Mauston,  Bui.  Wis.  Indus.  Com. 
vol.  1,  p.  97. 

5  5  Thompson  v.  Twiss  (1916)  90  Conn.  444,  97  Atl.  328. 


§  62  workmen's  compensation  200 

thing-  which  comes  without  regularity  and  is  occasional  and  inci- 
dental. Its  meaning  may  be  more  clearly  understood  by  referring 
to  its  antonyms,  which  are  "regular,"  "systematic,"  "periodic,"  and 
"certain."  ^^  An  employment  is  "of  a  casual  nature" — the  words 
of  the  English  Act — when  it  is  not  stable,  regular,  periodic,  or 
certain  in  nature."  The  difference  between  those  state  Acts,  which 
use  the  modifying  word  "casual,"  and  the  English  Act,  which  uses 
the  words  "of  a  casual  nature,"  must  be  regarded  as  designed.^* 
The  effect  is  to  narrow  the  scope  of  such  state  Acts,  as  compared 
with  the  English  Act.  In  those  states,  the  contract  of  service 
is  the  thing  to  be  analyzed  to  determine  whether  the  employment  is 
casual,  while  in  England  the  nature  of  the  service  rendered  is  the 
decisive  test.^^     Ordinarily  an  employment  is  casual  when  for  a 

5  6  In  re  Gaynor,  217  Mass.  86,  104  N.  E.  339,  L.  R.  A.  1916A,  363. 

5  7  The  employment  was  of  a  casual  nature  where  a  jobbing  gardener  was 
hired  by  the  day  to  trim  trees,  then  to  level  the  lawn,  and  then  to  trim  more 
trees,  being  paid  by  the  day— (Knight  v.  Bucknill  [1913]  6  B.  W.  C.  C.  160, 
C.  A.)  where  a  carpenter  was  hired  by  a  householder  to  cut  down  some  trees 
on  the  grounds  of  a  house  upon  which  he  had  been  working  as  a  carpenter ; 
(McCarthy  v.  Norcott  [1910]  2  B.  W.  C.  C.  279,  C.  A.)  where  a  man  was  hired 
by  a  householder  lor  several  years  to  clean  windows  at  irregular  periods, 
whenever  they  needed  cleaning;  (Hill  v.  Begg  [1909]  1  B.  W.  C.  C.  320,  C.  A.) 
where,  without  making  arrangements  in  advance,  a  workman  cleaned  the 
windows  of  his  employer's  residence  once  each  month  for  four  years,  and  was 
then  killed;  (Ritchings  v.  Bryant  [1913]  6  B.  W.  C.  C.  183,  C.  A.)  where  a 
window  cleaner  was  in  the  habit  of  calling  at  a  doctor's  residence,  without 
invitation,  about  once  a  month,  to  clean  liis  windows ;  (Rennie  v.  Reid  [1909] 
1  B.  W.  C.  O.  324,  Ct.  of  Sess.) ;  but  not  where  a  charwoman  went  to  the  same 
employer  regularly  on  certain  fixed  days,  although  without  special  orders; 
(Dewhurst  v.  Mather  [1909]  1  B.  W.  C.  C.  32S,  C.  A.)  nor  where  an  old  serv- 
ant worked  for  several  years  in  the  woods  when  trimming  season  arrived, 
for  as  long  as  the  work  lasted  each  year,  this  being  regular  seasonal  em- 
ployment (Smith  V.  Buxton  [1915]  8  B.  W.  C.  C.  196,  C.  A.). 

5  8  In  re  Gayner,  217  Mass.  S6,  104  N.  E.  339,  L.  R.  A.  1916A,  363.  (Since 
the  rendition  of  this  decision  the  Massachusetts  Act  has  been  amended  by 
striking  out  the  words  "or  casual.") 

5  9  Thompson  v.  Twiss,  90  Conn.  444,  97  Atl.  328;  In  re  Gayner,  217  Mass. 
86,  104  N.  E.  339,  L.  R.  A.  1916A,  363 ;  Knight  v.  Bucknill,  6  B.  W.  C.  C.  160. 


201  PERSONS   ENTITLED  TO   COMPENSATION  §    62 

single  day/°  or  by  the  hour/^  but  not  where  one  is  employed  to 
do  a  particular  part  of  a  service  recurring  somewhat  regularly, 
with  the  fair  expectation  of  the  continuance  for  a  reasonable  time.*'^ 

6  0  (St.  1911,  c.  751,  pt.  5,  §  2,  as  amended  by  St.  1914,  c.  70S,  §  13)  In  re 
King,  220  Mass.  290,  107  N.  E.  959.  A  teamster's  employment  was  but  casual, 
where  he  was  occasionally  employed  by  another,  as  he  wanted  him,  at  a 
certain  sum  a  day  for  himself  and  team.  (St.  1911,  c.  751,  as  amended  by  St. 
1912,  c.  571)  In  re  Cheever,  219  Mass.  244.  106  N.  E.  861. 

81  "A  man  was  hired  to  shingle  the  home  of  his  employer.  After  he  had 
finished  the  shingling  of  this  house  it  was  tlie  intention  of  the  employer  to 
have  this  man  do  some  repairing  around  other  houses  that  he  owned.  The 
man  was  hired  by  the  hour,  at  the  rate  of  20  cents  an  hour.  The  Attorney 
General  advised  that  the  employment  was  a  casual  employment  and  the  em- 
ployer would  not  be  liable  under  the  Compensation  Act."  Op.  Atty.  Gen.  on 
Minn.  Wk.  Comp.  Act,  Bui.  11,  p.  20.  Volunteer  firemen,  paid  $1  an  hour  for 
the  first  hour  of  service  for  every  call,  and  50  cents  an  hour  for  succeeding 
hours,  are  casual  employes,  and  are  not  included  in  the  act.    Id. 

62  Sabella  v.  Brazileiro,  86  N.  J.  Law,  505,  91  Atl.  1032;  87  N.  J.  Law,  710, 
94  Atl.  1103. 

A  man  was  employed  by  the  road  overseer  of  the  county  council  to  draw 
stones  from  the  quarry.  His  wages  were  fixed  by  contract.  The  evidence 
showed  that  he  was  to  get  work  now  and  again  when  there  would  be  work 
to  do,  there  being  no  objection  to  his  working  for  some  one  else  when  he  was 
not  wanted  by  the  overseer.  The  court  held  that  he  was  a  workman  within 
the  meaning  of  the  Workmen's  Compensation  Act.  O'Donnell  v.  Clare  County 
Council  (1913)  6  B.  W.  C.  C.  457,  C.  A. ;  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp. 
Act,  Bui.  11,  p.  20. 

Where  one  was  employed  tor  an  indefinite  period  at  $5  per  day  to  work  on 
a  contract  for  the  erection  of  a  structural  steel  building,  this  was  not  a 
casual  employment.  (P.  L.  1911,  p.  134)  Scott  v.  Payne  Bros.,  Inc.,  85  N.  J. 
Law,  446,  89  Atl.  927.  Where  petitioner  testified  that  the  employer  told  him 
to  "come  IMonday  morning,  I  will  give  you  some  work  to  shave  the  skins," 
that  the  price  was  to  be  so  much  a  dozen,  and,  if  petitioner  did  better  work, 
10  cents,  the  jury  could  properly  find  that  the  intention  was  to  give  petitioner 
piece  work  in  the  defendant's  regular  business.  Such  employment  was  not 
"casual."  (P.  L.  1011,  p.  134)  Schaeffer  v.  De  Grottola,  85  N.  J.  Law,  444,  89 
Atl.  921. 

Where,  in  the  work  of  superintending  and  helping  in  the  unloading  of 
glass  to  be  used  on  a  building,  tliere  was  an  element  of  certainty  in  the  re- 
currence of  the  work  at  times  which,  though  they  could  not  be  fixed  definitely, 
were  sure  to  occur  and  recur  in  the  construction  of  the  building,  the  work 
was  not  casual  employment.  (Wk.  Comp.  Act,  pt.  1,  §  7)  Dyer  v.  James  Black 
Masonry  &  Contracting  Co..  Mich.  Wlc.  Comp.  Cases  (1916)  52,  158  N.  W.  959. 

Filling  a  silo  and  digging  potatoes  is  as  much  a  part  of  the  business  of 


§  62  workmen's  compensation  202 

Thus,  one  employed  as  a  workman  on  a  sawmill  on  such  days  as 
it  operated  during  a  period  of  four  months  was  not  a  casual  em- 
ploye.®^ It  does  not  render  an  employment  casual  that  it  is  not  for 
any  specified  length  of  time,^*  or  that  the  injury  occurs  shortly 
after  the  employe  begins  work.^^ 

The  words  "or  casual"  have  been  stricken  from  the  Massa- 
chusetts Act,  so  that  all  employes  engaged  in  the  usual  course  of 
the  trade,  business,  occupation,  or  profession  of  their  employer, 
except  masters  of  and  seamen  on  vessels  engaged  in  interstate  and 
foreign  commerce,  will  receive  compensation.''^ 

farmiug  as  any  other  work  about  the  farm,  and  the  fact  that  it  did  not  re- 
quire a  long  period  of  time  to  complete  the  task,  or  that  it  needed  to  be  done 
only  once  during  the  ye-ar,  did  not  make  it  casual  employment.  Vojacek  v. 
Schlaefer,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  8. 

63  Clements  v.  Columbus  Sawmill  Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com. 
p.  161. 

Gi  The  evidence  showed  that  the  employe,  a  brewery  worker  and  member 
of  the  union,  was  engaged,  the  employment  offered  being  that  of  helper  in 
sinking  and  digging  a  well,  and  the  employment  in  which  he  actually  was 
engaged  at  the  time  of  the  injury  being  that  of  a  helper  in  the  carrying  of 
pipes  from  the  boiler  room  of  the  brewery.  No  time  was  fixed  as  the  period 
of  his  employment,  but  the  evidence  showed  that  it  would  be  at  least  two 
months,  and  possibly  more.  After  working  seven  days  the  employe  received 
a  scratch  from  a  pipe  which  he  was  carrying,  dying  two  weeks  later  from 
septic  pneumonia.  It  was  held  that  the  employment  was  not  casual.  Coyle  v. 
Blass.  Employes'  Insur.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  704  (decision  of 
Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.). 

65  An  employe  was  employed  to  operate  a  buffing  machine.  He  was  paid 
by  the  hour  and  was  not  employed  for  any  specified  length  of  time.  He  was 
injured  within  three  hours  after  he  entered  upon  his  employment,  by  being 
struck  on  the  left  side  near  the  region  of  his  heart  by  a  "buffer's  chuck," 
which  disabled  him  so  that  he  had  to  suspend  work  for  the  day,  and  was 
unable  to  again  resume  work  prior  to  his  death,  which  occurred  sixteen  days 
after  the  injury.  The  Commission  held  that  the  employment  was  not  casual. 
In  re  Bridget  McAuliffe,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Cora.  p.  144. 

6  6  See  Introduction  to  2  Mass.  Wk.  Comp.  Cases. 

The  insurer  claimed  that  the  employe  was  not  entitled  to  compensation, 
because  he  received  his  injury  while  "trimming"  a  tree  on  church  property, 
alleging  that  this  work  was  "casual"  and  not  in  the  usual  course  of  the  busi- 


203  PERSONS   ENTITLED  TO   COMPENSATION  §    63 

Where  the  employer  desires  to  raise  the  question  as  to  whether 
the  employe  is  a  casual  employe,  and  not  within  the  Act,  he  should 
submit  evidence  on  that  question.®^ 

§  63. Connecticut 

"Casual  employment,"  within  the  Connecticut  Act,  means  occa- 
sional or  incidental  employment;  an  employment  which  comes 
without  regularity.^^  It  is  in  this  sense  that  the  word  is  used,  rath- 
er than  in  the  sense  of  an  employment  arising  through  accident  or 
chance,  which  the  Supreme  Court  of  New  Jersey  has  held  to  be 
the  true  meaning  of  "casual"  as  employed  in  the  Act  of  that  state. *^^ 
If  the  employment  be  upon  an  employer's  business  for  a  definite 
time,  as  for  a  week  or  a  month,  it  is  not  a  casual  employment.  Nor 
is  an  employment  casual  if  it  is  for  a  part  of  the  workman's  time 
at  regularly  recurring  periods  of  time.''"  A  workman  employed  in 
developing  land,  work  in  which  he  would  be  engaged  for  several 
weeks   if  he   satisfied   the  employer,  and  which   was  one   of   the 

ness  of  the  subscriber.  The  evidence  showed  that  the  workman  was  engaged 
by  a  representative  of  the  subscriber  and  directed  to  perform  such  work  as 
the  foreman  required.  The  foreman,  who  also  was  the  tree  warden  of  the 
town  of  Stoughton,  ordered  the  employe  to  "trim"  the  tree  upon  which  the 
injury  occurred.  It  was  held  that  the  employe  was  entitled  to  compensation. 
Howard  v.  Mass.  Employes'  Ins.  Ass'n,  2  Mass.  Wk-.  Comp.  Cases,  1  (decision 
of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.,  also  by  Sup.  Jud.  Ct.,  21S  Mass. 
404,  105  N.  E.  636). 

6  7  Victor  Chemical  Works  v.  Industrial  Board  of  Illinois,  274  111.  11,  113 
N.  E.  173. 

6S  Thompson  v.  Twiss,  90  Conn.  444,  97  Atl.  328. 

68  Id.,  supported  by  Sabella  v.  Braziliero,  S6  N.  J.  Law,  505,  91  Atl.  1032. 

In  Coffey  v.  Borden's  Condensed  Milk  Co.,  1  Conn.  Comp.  Dec.  167,  it  was 
held  that  the  employment  of  filling  defendant's  icehouse  with  ice  from  a  pond 
on  the  premises,  such  work  being  done  every  year  and  requiring  considerable 
time  for  its  accomplishment,  the  employ^  being  expected  to  work  until  the 
icehouse  was  filled,  was  not  casual  employment. 

In  a  casual  employe's  action  the  common-law  defenses  are  available. 
Thompson  v.  Twiss  (1916)  90  Conn.  444,  97  Atl.  328. 

7  0  Thompson  v.  Twiss,  supra. 


§  64  workmen's  compensation  204 

businesses,  though  not  the  principal  business  of  the  employer,  was 
not  engaged  in  an  employment  of  a  casual  nature/^  A  dual  em- 
ployment does  not  make  one  a  casual  employe.'^^ 

§  64. California 

To  relieve  the  employer  from  liability  under  the  California  Act, 
the  employment  must  be  "both  casual  and  not  in  the  usual  course 
of  the  trade,  business,  profession  or  occupation  of  the  employer."  ^^ 

71  Id. 

72  In  Penfield  v.  Town  of  Glastonbury,  1  Conn.  Comp.  Dec.  637,  a  janitor 
employed  by  the  city  to  take  care  of  a  school  building,  and  also  by  a  church 
for  similar  duties,  was  held  not  to  have  been  a  casual  employe. 

73  (Wk.  Comp.  Act,  §  14)  Paul  v.  Nikkei,  1  Cal.  I.  A,  C.  Dec.  648;  Shouler 
V.  Greeuberg,  1  Cal.  I.  A.  C.  Dec.  146. 

Compensable  injuries. — Where  a  carpenter  is  employed  by  persons  operating 
a  dairy  ranch  to  go  upon  the  ranch  and  build  a  barn,  residing  on  the  ranch 
while  at  work,  such  work  is  not  casual  or  outside  the  usual  course  of  the  busi- 
ness of  his  employers.  Cowles  v.  Alexander  &  Kellogg,  2  Cal.  I.  A,  C.  Dec.  615. 
Where  a  carpenter  regularly  employed  by  a  laundry  corporation  in  working 
about  the  laundry  is  directed  by  the  president  of  the  corporation  to  do  an  odd 
job  on  the  building  belonging  to  a  stockholder,  and  to  have  his  brother  assist 
him,  and  it  appears  that  the  corporation  was  in  the  habit  of  having  this  car- 
penter make  such  repairs  on  the  private  property  of  individual  stockholders, 
without  charge  to  them,  and  to  pay  such  carpenter  his  regular  earnings  during 
such  service,  and  that  it  was  the  intention  and  understanding  so  to  do  in  this 
instance,  the  corporation  was  liable  in  case  of  fatal  injuries  to  the  brother 
during  such  employment.  Such  employment,  though  casual  as  to  the  deceased, 
was  in  the  usual  course  of  the  employer's  business.  English  v.  Cain,  2  Cal. 
I.  A.  C.  Dec.  399.  The  employment  of  a  person  to  clean  out  the  cellar  of  a 
restaurant,  taking  out  abandoned  boxes  and  goods  and  pumping  out  water 
which  had  seeped  in,  the  work  consuming  three  days,  was  in  the  usual  course 
of  the  business  of  the  restaurant,  although  casual,  and  the  person  employed 
was  not  excluded  from  compensation.  jNIcDeruaott  v.  Fanning,  3  Cal.  I.  A.  C. 
Dec.  14,  While  it  was  not  a  part  of  the  laundry  business  to  make  repairs  to  the 
private  property  of  its  members,  yet  where  it  had  long  lieen  the  custom  of  the 
laundry  to  make  such  repairs,  such  custom  brought  the  making  of  such  repairs 
within  the  usual  course  of  the  business,  actually  undertaken  by  the  laundry 
company  as  the  employer  of  deceased.  Id.  Where  a  decorator  hired  a  carpen- 
ter less  than  once  a  year,  but  has  some  woodwork  to  be  done  frequently  in  the 
course  of  his  employment  in  putting  up  scaffolding  upon  which  to  fasten 


205  PERSONS   ENTITLED  TO   COMPENSATION  §    64 

It  is  the  course  of  the  business,  not  the  nature  of  the  employment, 
which  is  required  to  be  usual.     It  follows  that  the  fact  that  the 

decorations,  such  work  being  done  usually  by  himself  or  his  own  employ§s, 
and  where  he  engaged  an  outside  carpenter  to  erect  a  booth  at  a  carnival,  to 
be  decorated,  the  employment  of  such  carpenter  is  in  the  usual  course  of  the 
business  of  the  decorator,  the  erecting  of  scaffolding  upon  which  to  hang  deco- 
rations being  in  the  usual  course  of  his  business,  whether  it  be  done  by  his  own 
employes  or  infrequently  by  regular  carpenters.  Brain  v.  Eisfelder,  2  Cal. 
I.  A.  C.  Dec.  30.  Though  a  man  employed  for  an  emergency  job,  loading  ice 
upon  refrigerator  cars,  the  work  to  last  a  few  hours,  is  a  casual  employe,  he 
is  within  the  protection  of  the  Act,  where  the  work  is  the  regular  business  of 
his  employer.  Paul  v.  Nikkei,  1  Cal.  I.  A.  C.  Dec.  648.  Where  a  person  who 
had  done  occasional  errands  before  for  compensation  was  permitted  by  the 
owner  to  try  the  automobile  delivery  wagon,  and  was  given  a  parcel  to  deliver, 
nothing  being  said  about  payment  therefor,  such  employment,  though  casual, 
was  in  the  usual  course  of  the  business  of  the  employer,  and  compensation 
should  be  awarded,  for  an  injury  sustained  by  the  overturning  of  the  automo- 
bile while  on  such  errand.  Smith  v.  Hayashi  Floral  Store,  2  Cal.  I.  A.  C.  Dec. 
526.  Where  a  carpenter  was  employed  to  repair  and  rearrange  equipment  of 
a  creamery,  the  employment  was  in  the  usual  course  of  employer's  business. 
Hoover  v.  Engvick,  2  Cal.  I.  A,  C.  Dec.  875. 

Employments  not  in  usual  course  of  the  employer's  business. — Neither  the 
owner  of  a  building,  nor  the  manager,  to  whom  the  care  of  the  premises  has 
been  intrusted  in  the  owner's  absence,  has  as  a  usual  course  of  his  business 
the  repair  of  buildings,  so  that  an  injury  to  a  workman  engaged  in  making 
such  repair  would  be  received  in  the  usual  course  of  the  employer's  business. 
Peterson  v.  Pellasco,  2  Cal.  I.  A.  C.  Dec.  199. 

Employments  both  casual  and  not  in  usual  course. — A  house  painter  em- 
ployed at  a  rate  per  day  at  work  which  could  be  reasonably  finished  in  two 
weeks,  'being  casual  employ§  not  employed  in  the  usual  course  of  the  trade, 
business,  profession,  or  occupation  of  his  employer,  where  it  did  not  appear 
that  the  employer  was  regularly  engaged  in  any  business  which  called  for  the 
employment  of  house  painters,  and  the  contract  was  for  no  definite  period 
and  obligated  the  painter  to  furnish  the  materials.  Blood  v.  Industrial  Ace. 
Com'n  of  State  of  California  (Cal.  App.)  157  Pac.  1140  (annulling  award). 
Where  a  machinist  was  hired  by  a  farmer  to  repair  a  tractor  used  m  plowing, 
and,  being  offered  employment  at  driving  the  tractor  after  he  had  repaired  it, 
refused,  and  was  injured  before  he  had  finished  the  repair  work.  (Wk.  Comp., 
etc..  Act,  §  14)  Maryland  Casualty  Co.  v.  Pillsbury  (Cal.  Sup.)  158  Pac.  1031 
(annulling  award).  Where  a  carpenter  was  injured  while  constructing  a 
small  barn  or  chicken  house  on  land  being  set  out  to  lemon  and  avocado  trees, 
the  business  of  employer  being  horticultural,  and  the  job  being  finished  within 
four  days.    Brockman  v.  Sheridan,  2  Cal.  I.  A.  C.  Dec.  1061.    Where  a  porter 


§  64  workmen's  compensation  206 

cause  requiring  the  employment  is  unusual  and  extraordinary  does 
not  prevent  the  employment  from  being  in  the  usual  course  of  the 
employer's  business.^*  Where  the  length  of  employment  is  less 
than  one  week,  the  employment  is  casual/^  though,  contrary  to 
agreement,  more  than  a  week  is  taken  to  do  the  work,'^®  but  not 
where  it  is  more  than  one  week,'^'^  though  a  more  skillful  employe 

in  a  saloon  was  sent  upstairs  by  the  proprietor  to  wash  the  windows  in  the 
apartment  above,  where  such  employer  resided  with  his  family,  the  porter 
receiving  extra  pay  when  he  did  such  upstairs  worli,  and  while  so  engaged 
fell  to  the  sidewalk  and  was  injured.     Castellotti,  v.  McDonnell,  1  Cal.  I.  A. 

0.  Dec.  351.  Where  defendant,  a  retired  merchant  and  not  engaged  in  the 
business  of  repairing  roofs,  engages  the  applicant  to  inspect  defendant's  roof, 
find  the  leaks,  and  repair  them,  and  applicant  is  injured  by  accident  while  so 
doing.  Trenholm  v.  Hough,  1  Cal.  I.  A.  C.  Dec.  260.  Where  a  carpenter  was 
employed  by  a  farmer  to  assist  him  in  erecting  a  small  building,  and  the  em- 
ployment lasted  and  was  expected  to  last  not  longer  than  one  week.  Aiken 
V.  Anderson,  2  Cal.  I.  A.  C.  Dec.  323.  Where  a  rooming  house  keeper  em- 
ployed a  plasterer  for  a  period  of  less  than  one  week  to  lath  and  plaster 
certain  rooms  in  his  house.    Augustine  v.  Cotter,  2  Cal.  I.  A.  O.  Dec.  49. 

7  4  To  combat  a  fire  and  prevent  impending  devastation  on  a  grass  range, 
pasturage  on  which  was  essential  to  the  success  of  the  owner's  ranching  busi- 
ness, a  crew  of  men  was  employed  by  the  owner.  The  Commission  held  that 
such  employment  was  in  the  usual  course  of  the  owner's  business,  the  work 
being  necessary  to  preserve  the  business,  though  the  cause  requiring  the  em- 
ployment was  unusual  and  extraordinary.    Mazzini  v.  Pacific  Coast  Ry.,  2  Cal. 

1.  A.  C.  Dec.  962. 

7  5  (Wk.  Comp.  Act,  §  14)  Augustine  v.  Cotter,  2  Cal.  I.  A.  C.  Dec.  49 ;  Brain 
V.  Eisfelder,  2  Cal.  I.  A,  C.  Dec.  30 ;  Trenholm  v.  Hough,  1  Cal.  I.  A.  C.  Dec. 
260.  Employment  for  a  single  task,  lasting  not  more  than  fifteen  or  twenty 
minutes,  is  casual.  Ginther  v.  Knickerbocker  Co.,  1  Cal.  I.  A.  C.  Dec.  458. 
Where  the  regular  carpenter  was  in  the  usual  course  of  his  employment,  but 
the  service  on  the  particular  job  would  require  only  a  day,  the  employment  of 
his  brother  merely  to  assist  on  the  one  job  was  casual  employment.  English 
V.  Cain,  2  Cal.  I.  A.  C.  Dec.  399. 

7  6  Where  one  hires  a  workman  to  build  a  frame  garage,  under  agreement 
that  the  workman  will  procure  a  helper  and  the  work  will  not  last  more  than 
six  days,  and  where  the  work  actually  lasted  eight  days  through  failure  to 
procure  help,  the  employment  is  casual.  Roadhouse  v.  Wells,  2  Cal.  I.  A.  C. 
Dec.  251. 

7  7  Feehan  v.  Tevis,  2  Cal.  I.  A.  Dec.  434;  Hoover  v.  Engvick,  2  Cal.  I. 
A.  C.  Dec.  875.    Cowles  v.  Alexander  &  Kellogg,  2  Cal.  I.  A.  C.  Dec.  615;   Ra- 


207  PERSONS   ENTITLED  TO   COMPENSATION  §    65 

could  have  completed  the  work  in  less  than  a  week/^  Employ- 
ments otherwise  casual  may  cease  to  be  casual  by  mere  lapse  of 
time.^^  The  test  of  the  course  of  business  of  a  corporation  is  not 
the  work  which  the  corporation  says  it  is  doing,  but  the  work  which 
it  actually  does  as  a  usual,  customary,  or  repeated  matter.  Where 
it  undertakes  the  work  of  repairing  its  stockholders'  buildings  re- 
peatedly, it  is  doing  that  work,  regardless  of  whether  it  be  consistent 
with  its  name.^**  Ordinary  janitor  work  is  in  the  usual  course  of 
business  of  any  employer  who  conducts  his  business  in  any  build- 
ing which  needs  to  be  cleaned  or  with  machinery  which  needs  oc- 
casionally to  be  shifted.*^ 

§  65. Iowa  and  Minnesota 

The  Iowa  Act,  resembling  that  of  California,  is  peculiar,  in  that 
it  defines  "casual  employment"  to  refer  to  a  person  whose  employ- 
ment is  purely  casual  and  not  for  the  purpose  of  the  employer's 
trade  or  business.  The  statutes  of  most  of  the  states  use  the  word 
"or"  in  place  of  the  word  "and."    No  employers  are  excluded  from 

venscroft  v.  Packard,  3  €al.  I.  A.  C.  Dec.  24.  Where  a  machinist  is  employed 
to  go  out  to  the  ranch  of  his  employer  with  his  tools  and  put  the  caterpillar 
traction  engine  in  repair  for  operation  during  the  season,  and  is  so  engaged 
for  a  period  of  ten  days,  such  employment  is  not  casual.  Snow  v.  Harris,  2 
Cal.  I.  A.  C.  Dec.  393. 

7  8  Where  at  the  time  of  entering  upon  a  job  it  appears  that  the  work  will 
probably  last  more  than  one  week,  and  the  work  does  so  last,  the  employment 
is  not  casual,  even  though  a  more  skilled  employ^  would  have  completed  it 
within  the  week.    Peterson  v.  Pellasco,  2  Cal.  I.  A.  C.  Dec.  199. 

7  9  Blaine  v.  McKinsey,  1  Cal.  I.  A.  C.  Dee.  641.  The  employment  of  a  car- 
penter hired  by  the  job  to  build  a  cottage  was  not  casual,  where  he  had  work- 
ed longer  than  one  week.  Id.  Casual  labor  ceases  to  be  casual  if  it  lasts 
more  than  one  week.    Crosby  v.  Strong,  2  Cal.  I.  A.  C.  Dec.  408. 

80  English  v,  Cain,  2  Cal.  I.  A.  C.  Dec.  399. 

81  Where  the  manager  of  a  creamery,  needing  help  in  putting  away  heavy 
machinery,  calls  in  a  passer-by  to  help  him  for  fifteen  or  twenty  minutes  at 
a  small  remuneration,  and  the  passer-by  is  injured  while  so  doing,  he  is  en- 
titled to  compensation.    Ginther  v.  Knickerbocker  Co.,  1  Cal.  I.  A.  C.  Dec.  458. 


§  66  workmen's  compensation  208 

the  provisions  of  the  Iowa  Act  unless  the  employment  is  not  only 
purely  casual,  but  also  not  for  the  purpose  of  the  employer's  trade 
or  business.®^  A  laborer  picked  up  on  the  street  to  repair  the 
porch  of  a  doctor's  residence  is  not  within  this  Act,  where  the  re- 
pair work  is  unimportant  and  requires  but  a  few  hours'  labor.®^  The 
employment  of  a  man  to  collect  cream  from  farmers  and  bring-  it 
to  the  creamery,  though  being  for  one  day  only,  and  hence  casual, 
was  in  the  regular  course  of  the  employer's  business,  and  therefore 
within  the  scope  of  the  Minnesota  Act.^* 

§  66.     Independent  contractor 

The  Compensation  Law  does  not  apply  where  the  injured  person 
is  an  independent  contractor,  and  the  relation  of  employer  and 
employe  does  not  exist.®^  It  is  not  possible  to  lay  down  a  hard  and 
fast  general  rule  or  state  definite  facts  by  which  the  status  of  men 
working  and  contracting  together  can  be  definitely  defined  in  all 
cases  as  employe  or  independent  contractor.^®  Each  case  must  de- 
pend on  its  own  facts.  Ordinarily,  no  one  feature  of  the  relation  is 
determinative,  but  all  must  be  considered  together.*^  A  contractor 
is  ordinarily  one  who  carries  on  an  independent  employment  and 
is  responsible  for  the  results  of  his  work,  one  whose  contract  re- 
lates to  a  given  piece  of  work  for  a  given  price.  These  character- 
istics, however,  though  very  suggestive,  are  not  necessarily  con- 
trolling.^*   Generally  speaking,  an  "independent  contractor"  is  one 

8  2  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  6. 

8  3  Id. 

84  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  13,  p.  31. 

8  5  In  re  Sarah  Johns  et  al.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  172;  Op. 
Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  7. 

The  law  of  independent  contractor  was  in  no  wise  changed  by  the  enactment 
of  the  Workmen's  Compensation  Act  of  1913.  Biddinger  v.  Champion  Iron 
Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  70. 

86  McCoy  V.  Kirkpatrick,  1  Cal.  I.  A.  C.  Dec  599. 

87  Id.;   Wowinski  v.  Vito,  1  Conn.  Comp.  Dec.  629. 
8  8  Thompson  v.  Twiss,  90  Conn.  444,  97  Atl.  328. 


209  PERSONS   ENTITLED  TO  COMPENSATION  §    66 

who  exercises  an  independent  employment  and  contracts  to  do  a 
piece  of  work  according  to  his  own  method,  without  being  subject 
to  the  control  of  the  employer,  save  as  to  the  results  of  his  work.^'* 

8  9  An  independent  contractor  is  one  who  undertakes  to  produce  a  given  re- 
sult, but  so  that  in  the  actual  execution  of  the  work  he  is  not  under  the  order 
or  control  of  the  person  for  whom  the  work  is  done,  and  is  entitled  to  use  his 
own  discretion  in  things  not  mentioned  in  the  plans  and  specifications.  Rep. 
Nev.  Indus.  Com.  1913-14,  p.  25. 

The  test  of  the  relationship  of  employer  and  employ^  is  the  right  to  control. 
It  is  not  the  fact  of  actual  interference  with  the  control,  but  the  right  to  in- 
terfere, that  makes  the  difference  between  an  independent  contractor  and 
a  servant  or  agent.  Tuttle  v.  Embury-Martin  Lumber  Co.  (Mich.)  158  N.  W. 
875. 

The  services  required  all  the  applicant's  time,  and  he  was  not  at  liberty 
to  do  teaming  for  any  other  employer.  The  respondent,  through  its  superin- 
tendent and  foremen,  directed  the  loading  and  place  of  hauling  and  unloading, 
and  in  one  instance  directed  the  discharge  of  a  teamster  employed  by  the 
applicant,  and  the  instruction  was  complied  with.  Otherwise,  the  applicant 
employed  the  teamster,  and  paid  him  himself,  and  took  care  of  the  teams,  and 
furnished  his  own  barn  and  outfit  for  the  teaming.  He  and  his  teamster  re- 
ported for  work  at  7  o'clock  in  the  morning,  and  used  the  team  the  full  day, 
and  sometimes  worked  overtime.  He  had  no  definite  term  of  service ;  no  def- 
inite agreement  as  to  any  particular  amount  of  hauling  to  be  done.  He  was 
subject  to  discharge  at  any  time.  Whatever  the  contract  of  service  might  have 
been  is  left  very  largely  to  inference.  Upon  these  facts,  the  question  as  to 
whether  the  applicant  was  an  employg  for  hire,  or  a  contractor,  was  a  ques- 
tion of  law,  and  it  was  decided  that  he  was  an  employe,  and  entitled  to  com- 
pensation.    Mantz  V.  Falk  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  15. 

While  members  of  an  orchestra  would  usually  be  employes,  their  contract 
may  make  them  independent  contractors.  (Code  Supp.  1913,  §  2477ml6  [b]) 
Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  IS.  Where  it  appeared  that  B. 
and  A.  were  copartners  in  the  teaming  business,  and  A.  rented  a  team,  with 
B.  as  driver,  to  C,  and  C.  supposed  that  B.  was  an  employ^  of  A.  sent  with  the 
team,  and  C.  made  all  of  the  financial  arrangements  with  A.,  and  paid  A. 
for  the  use  of  both  team  and  driver,  A.  later  dividing  the  earnings  with  B., 
the  Commission  held  that  B.  was  not  an  employ^  of  C,  but  an  independent 
contractor,  either  singly  or  jointly  with  A.  and  that  C.  was  not  liable  for  com- 
pensation for  injuries  received  by  B.  while  so  working  for  C.  Sayers  v.  Gir- 
ard,  1  Cal.  I.  A.  C.  Dec.  352. 

In  Penfield  v.  Town  of  Glastonbury,  1  Conn.  Comp;  Dec.  637,  where  a  jani- 
tor was  employed  by  three  establishments,  including  a  church,  concurrently, 
and  also  dug  and  tended  graves  in  the  cemetery  for  small  sums,  he  was  an 

HON.COMP. — 14 


§  66  workmen's  compensation  210 

One  test,  sometimes  said  to  be  decisive,  is  as  to  who  has  the  right 
to  direct  what  shall  be  done,  and  when  and  how  it  shall  be  done, 

employe  in  regard  to  the  janitor  work,  and  a  contractor  in  respect  to  the  dig- 
ging and  care  of  graves. 

Persons  held  to  he  contractors  and  not  workmen:  A  physician,  since  he  is 
free  from  the  control  or  direction  of  the  person  employing  him.  Op.  Sp. 
Counsel  to  Iowa  Indus.  Com.  (1915)  p.  15.  Ohio.  One  who  contracts  with  an- 
other to  tear  down  and  remove  a  stack,  the  contract  providing  that  he  shall 
furnish  his  own  tools  and  appliances,  hire  his  own  help,  and  deliver  the  ma- 
terials at  a  specified  place  for  a  stipulated  sum  of  money ;  the  person  for 
whom  the  work  was  done  retaining  no  power  of  supervision  over  the  manner 
of  doing  the  work.  In  re  Sarah  Johns,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com., 
p.  172.  California.  One  engaged  to  cut  ties  at  a  certain  price  per  tie  on  land  of 
defendant,  where  he  was  at  liberty  to  employ  and  did  employ  labor  on  his  own 
account,  without  the  consent  of  the  owner  of  the  land,  and  without  such  own- 
er having  any  control  over  the  men  so  employed,  or  of  the  hours  of  labor  of 
the  applicant  himself.  Rose  v.  Pickrell,  1  Cal.  I.  A.  C  Dec.  85.  A  plasterer 
theretofore  doing  journeyman  work,  who  makes  an  oral  contract  to  do  a  plas- 
tering job  for  a  lump  sum,  and  is  given  free  hand  to  employ  assistants,  and 
takes  risks  of  profit  and  loss,  and  is  not  to  be  controlled  or  supervised.  Bak- 
er V.  Armstrong,  2  Cal.  I.  A.  C.  Dec.  1057.  An  applicant  engaged  to  cut  and 
saw  wood  for  the  defendant,  and  having  the  power  to  employ  other  men  to 
help  him,  the  defendant  having  no  control  over  the  applicant  or  those  employ- 
ed by  him,  as  to  who  should  be  employed,  or  their  hours  of  labor,  but  only  as 
to  the  length  of  the  wood  sawed,  and  the  applicant  also  having  similar  ar- 
rangements with  other  parties  to  saw  wood  for  them  on  the  same  terms.  Gil- 
luore  V.  Sexton,  1  Cal.  I.  A.  C.  Dec.  257.  A  teamster  paid  per  load  for  one 
definite  service,  producing  one  agreed  result,  having  full  control  of  his  team, 
his  time,  his  methods  of  work,  as  to  whether  or  not  he  hire  all  help,  and  of 
all  details,  except  as  to  what  is  to  be  hauled,  teaming  as  such,  being  his  reg- 
ilar  business,  independent  and  distinctive  from  the  regular  business  of  his 
principals,  he  suppljing  and  controlling  the  entire  means  of  producing  the  re- 
uult  for  which  he  is  to  be  paid.    (Comp.  Act,  §§  13,  14)  McCoy  v.  Kirkpatrick, 

1  Cal.  I.  A.  C.  Dec.  599.  The  husband  of  applicant,  where  he  had  purchased 
a  I'aundry  route  from  the  former  owner  and  with  a  motor  wagon  of  his  owa 
wao  carrying  on  the  business  of  collecting  laundry  for  the  defendant,  and  be- 
ing paid  30  per  cent,  of  the  receipts  by  the  laundry,  and  it  appeared  that 
he  lyafi  under  no  direction  or  control  of  the  laundry  as  to  hours  of  work  and 
field  fo»  soliciting,  and  could  even  sell  his  route  to  another  driver,  or  transfer 
the  business  to  another  laundry,  and  that  he  bore  the  losses  due  to  bad  ac- 
counts. Monroe  v.  Yosemite  Laundry  Co.,  2  Cal.  I.  A.  C.  Dec.  718.  A  member 
of  a  copartuership  working  under  a  subcontractor.     Kasovitch  v.  Wattis  Co., 

2  Cal.  I.  A.  C.  Dec.  319.    Connecticut.    One  who  agreed  to  blast  and  break  up 


211  PERSONS   ENTITLED  TO   COMPENSATION  §    66 

who  has  the  right  to  the  general  control.''*'  When  the  doing  of 
specific  work  is  intrusted  to  one  who  exercises  an  independent  em- 
stone  to  be  used  by  the  respondents  for  building  purposes,  receiving  wages 
per  day,  but  using  his  own  tools  and  providing  the  dynamite  and  assistants 
used,  and  being  under  no  direction  or  duty  to  receive  directions  from  the  re- 
spondent. Wowinski  v.  Vito,  1  Conn.  Comp.  Dec.  629.  A  carpenter  who  agreed 
to  build  a  barn  for  the  respondent,  being  paid  by  the  hour,  but  hiring  other 
men,  and  making  some  profit  on  their  wages,  as  well  as  on  some  materials 
furnished  by  him,  and  doing  the  work  from  general  plans,  without  any  su- 
pervision as  to  methods.  Crittenden  v.  Robbins,  1  Conn.  Comp.  Dec.  523. 
One  who  agreed  to  cut  wood  on  the  defendant's  land,  at  a  fixed  rate  per  cord, 
using  his  own  discretion  as  to  the  work;  the  defendants  having  no  authority 
or  supervision  as  to  hours,  methods,  tools,  or  persons  employed.  Snow  v. 
Winkler,  1  Conn.  Comp.  Dec.  76.  A  workman  who  agreed  to  cut  and  pile  wood 
on  the  defendant's  land  for  a  fixed  rate  per  cord,  cutting  as  much  as  he 
pleased  and  when  he  pleased,  and  working  part  of  the  time  for  other  people. 
Benoit  v.  Bushnell,  1  Conn.  Comp.  Dec.  172  (superior  court  reversing  the  com- 
missioner). A  painter  who  agreed  to  paint  the  house  of  the  respondent,  fur- 
nishing the  ladders  and  an  assistant  part  of  the  time,  making  a  small  profit 
on  the  wages  of  such  assistant,  the  respondent  paying  for  the  matenals,  and 
for  the  work  by  the  day  or  hour,  but  having  no  power  of  direction  or  super- 
vision beyond  requiring  a  finished  job  within  a  reasonable  time.  Wright 
V.  Barnes,  1  Conn.  Comp.  Dec.  248.  One  who  had  agreed  with  the  respondent 
to  build  a  silo  for  i.$20,  respondent  to  furnish  the  foundation,  the  materials, 
and  a  helper,  but  having  no  directive  rights  over  the  work.  Boyington  v. 
Stoddard,  1  Conn.  Comp.  Dec.  103.    New  York.    One  whose  business  was  mov- 

90  A  workman  was  employed  to  do  certain  work  in  the  development  of 
land,  the  employer  furnishing  the  explosives  and  most  of  the  tools  used. 
Tlie  workman  kept  a  team  of  horses  and  worked  sometimes  with  his  team. 
For  five  or  six  years  prior  to  the  injury  he  had  done  odd  jobs  for  the  same 
employer,  at  times  as  often  as  two  or  three  times  a  week.  He  had  the  privi- 
lege of  engaging  help,  and  in  fact  employed  men  to  assist  Mm,'  and  at  the 
end  of  the  week  gave  the  employer  the  pay  roll  and  received  wages  for  these 
men,  which  he  turned  over  to  them.  He  was  paid  for  his  own  work  by  the 
day  at  irregular  times,  receiving  pay  for  his  team  when  it  was  used,  but  no 
profit  on  the  wages  of  men  employed  by  him.  It  did  not  appear  that  he 
was  responsible  for  the  manner  in  which  the  work  was  done,  or  that  the 
employer  did  not  retain  control  over  the  extra  men  hired,  as  well  as  over 
the  workman.  Either  party  was  at  liberty  to  withdraw  from  the  arrange- 
ment without  loss  from  breach  of  contract.  Tlie  court  held  that  the  relatioik 
was  that  of  employer  and  employe,  and  not  that  of  independent  contractor. 
Thompson  v.  Twiss,  90  Conn.  414,  97  Atl.  328. 


§  66  workmen's  compensation  212 

ployment,  and  selects  his  own  help,  and  has  the  immediate  con- 
trol of  them,  and  the  right  to  control  the  method  of  conducting  the 

ing  and  handling  heavy  machinery,  being  engaged  for  that  purpose  by  the  de- 
fendants, and  who  employed  helpers,  and  not  only  made  a  profit  on  their 
wages  as  charged  against  the  defendant,  but  also  carried  insurance  on  them, 
and  furnished  certain  appliances  for  the  use  of  which  he  charged  the  defendant. 
McNally  v.  Diamond  Mills  Paper  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  7,  p.  8. 
Wisconsin.  One  who  was  under  contract  with  a  lumber  company  to  cut,  log, 
haul,  and  deliver  all  the  saw  logs  and  pulp  wood  on  certain  lands,  and  was 
paid  according  to  the  amount  of  timber  cut,  and  hired  his  own  help  to  do 
the  work.  Zobel  v.  Godlevski,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  12.  England. 
A  man  paid  5s.  a  day  by  a  county  council  to  haul  stone,  and  permit- 
ted to  work  whenever  and  in  any  manner  he  liked.  Ryan  v.  Tipperary  Coun- 
ty Council  (1912)  5  B.  W.  C.  C.  578,  C.  A.  A  foreman  bricklayer  who  accepted 
a  contract  to  do  a  piece  of  work,  having  the  material  furnished  him,  but  him- 
self obtaining  the  labor  and  tools,  and  was  paid  in  a  lump  sum.  Simmons  v. 
Faulds  (1910)  3  W.  C.  C.  169,  C.  A.  (Act  of  1897).  Two  laborers,  who  agreed  to 
remove  surface  earth,  hired  help,  and  were  paid  by  the  cubic  yard,  and 
who  were  supplied  with  plant  and  tools  by  the  quarry  master,  with  whom 
they  made  the  arrangements.  Hayden  v.  Dick  (1903)  5  F.  150,  Ct.  of  Sess. 
The  head  of  a  gang  of  workmen  engaged  in  felling  trees.  Curtis  v.  Plumb- 
tre  (1913)  6  B.  W.  C.  C.  87,  C.  A.  A  journeyman  slater,  who  had  undertaken 
as  an  independent  contractor,  hiring  his  own  laborer,  to  do  a  job  of  slating 
for  some  builders,  and  did  not  progress  as  rapidly  as  they  wished,  whereupon 
they  hired  another  slater  and  two  more  laborers  to  "push  the  work."  Barnes 
V.  Evans  &  Co.  (1914)  7  B.  W.  C.  C.  24,  C.  A.  A  man  who  agreed  to  drag  some 
logs  with  his  horse,  being  paid  a  certain  sum  per  day,  and  was  not  obliged 
to  do  the  work  himself,  but  might  have  sent  a  servant.  Chisholm  v.  Walker 
&  Co.  (1910)  2  B.  W.  C.  C.  261,  Ct.  of  Sess.  A  man  who  had  contracted  with 
the  harbor  commissioners  that  he  would  furnish  a  yawl  and  four  men  to 
work  at  a  pilot  station,  and  was  drowned  while  taking  a  pilot  out  to  his  ship 
in  the  harbor,  he  being  under  no  obligation  to  do  the  work  personally.  Walsh 
V.  Waterford  Harbor  Commissioners  (1914)  7  B.  W.  C.  C.  960,  C.  A.  A  rabbit 
trapper,  who  was  paid  so  much  a  couple  and  was  his  own  master  in  respect 
to  his  work,  although  the  employer  paid  him  by  the  couple  and  supplied  him 
with  a  cottage  for  his  use.  McConnel  v.  Galbraith  (1914)  7  B.  W.  C.  C.  988, 
C.  A.  A  mason  who  agreed  with  a  contractor  to  build  cottages  for  him  with- 
in a  certain  time,  being  paid  by  the  day  and  using  material  furnished  by 
the  contractor,  who  also  provided  a  surveyor  to  pass  upon  the  work  as  to 
whether  it  was  satisfactory,  the  mason  not  being  compelled  to  work  all  the 
time,  but  working  part  of  his  time  for  other  persons.  Byrne  v.  Baltinglass 
Rural  District  Council  &  Kelly  (1912)  5  B.  W.  C.  C.  566,  C.  A.  A  letter  fixer, 
who  was  hired  quite  often  intermittently,  and  was  paid  by  the  piece,  and  who 


213  PERSONS   ENTITLED  TO   COMPENSATION  §    66 

work,  the  contractor  is  an  independent  contractor.^^     It  does  not 
make  one  an  independent  contractor  that  he  is  to  be  paid  for  his 

worked  for  others  when  not  employed  by  defendants.    Bumham  &  Co.  v.  Tay- 
lor (1910)  3  B.  W.  C.  C.  569,  Ct.  of  Sess. 

Persons  held  to  be  workmen  and  not  independent  contractors:    A  person 
engaged  by  creamery  at  $10  per  day  to  collect  cream  and  deliver  butter,  said 
sum  to  be  computed  upon  the  basis  of  $75  per  month  wages  and  a  further  al- 
lowance to  be  made  for  the  rental  of  an  ^automobile  and  team  and  the  wages 
of  a  boy  to  assist  in  the  work,  and  it  appearing  that  the  creamery  exercised 
full  direction  and  control  and  supervision  over  him  as  to  the  mode  of  doing 
his  work,  that  he  gave  his  time  exclusively  to  the  employment  and  was  sub- 
ject to  discharge  at  any  time.     Golden  v.  Delta  Creamery  Co.,  2  Cal.  I.  A.  C. 
Dee.  744.     A  carpenter  working  for  a  lump  sum  for  his  labor,  the  amount 
thereof  being  based  upon  the  estimated  number  of  days  required  at  a  given 
wage,  and  he  not  supplying  the  materials  or  paying  his  assistants,  and  being 
subject  to  the  direction  of  the  owner.     Holmes  v.  Japan  Beautiful  Nippon 
Kyosin  Kaisha,  Inc.,  2  Cal.  I.  A.  C.  Dec.  894.    A  cook  put  in  charge  of  a  board- 
ing house  by  a  manufacturing  company  on  a  monthly  salary,  and  to  have 
in  addition  all  profits  in  boarding  the  employes,  but  the  work  done  under  the 
direction,  control  and  management  of  the  company.    Michael  v.  Western  Salt 
Co.,  2  Cal.  I.  A.  C.  Dec.  501.    A  shingle  bolt  maker,  engaged  on  the  timber  land 
of  the  defendant  in  the  cutting  of  shingle  bolts  and  paid  at  the  rate  of  $1.75 
a  cord  for  all  work  done,  the  pay  day  being  at  the  same  time  as  that  of  "the 
men  working  on  a  wage  basis,  notwithstanding  the  fact  that  he  had  no  regu- 
lar hours,  was  master  of  his  own  time,  and  was  subject  to  no  supervision 
other  than  that  the  shingle  bolts   conform  to   standard.     Travis  v.  Hobbs, 
Wall  &  Co.,  2  Cal.  I.  A.  C.  Dec.  506.    A  vaudeville  actress  employed  at  a  sal- 
ary on  a  vaudeville  circuit,  though  she  furnished  her  own  costumes  and  skates. 
Howard  v.  Republic  Theater,  2  Cal.  I.  A,  C.  Dec.  514.    A  carpenter  frequently 
employed  at  a  daily  wage  by  the  shop  owner,  where  he  is  put  to  work  to  fill 
an  order  for  window  frames,  on  the  basis  of  25  cents  per  frame,  and  is  injured 
while  so  doing.    Hale  v.  Johnson,  2  Cal.  I.  A.  C.  Dec.  339.    One  who  is  engag- 
ed by  a  merchant  to  collect  bills,  and  spends  about  two  hours  a  day  in  so 
doing,  no  fixed  compensation  being  agreed  upon,  and  who  is  paid  by  being 
given  such  sum  from  time  to  time  as  both  parties  agree  upon,  and  who  while 
so  engaged  is  not,  with  one  unimportant  exception,  employed  by  others  to 
collect  bills  at  the  same  time.    Shoulder  v.  Greenberg,  1  Cal.  I.  A.  C.  Dec.  146. 
A  superintendent  of  construction  of  an  oil  pumping  apparatus,  of  which  he 
was  the  inventor,  who  receives  the  sum  of  $3.50  per  day  from  the  oil  com- 
pany for  each  day  of  work,  which  the  oil  company  designates  as  an  "advance," 
but  does  not  claim  was  loaned  or  to  be  repaid,  and  the  books  show  a  balance 


91  Thompson  v.  Twiss,  90  Conn.  444,  97  Atl.  328. 


§  66  workmen's  compensation  214 

services  on  a  commission  basis/^  by  piecework,®^  or  by  any  par- 
ticular mode  of  payment.^* 

of  $301  of  unpaid  advances  at  the  death  of  the  superintendent,  a  portion  of 
which  is  thereafter  paid  to  the  widow.  Turner  v.  Oil  Pumping  &  Gasoline 
Co.,  2  Cal.  I.  A.  C.  Dec.  496.  A  salesman,  who  with  his  own  motorcycle 
was  engaged  by  defendant  to  solicit  business  in  a  certain  district  assigned  to 
him,  to  be  paid  a  commission  on  contracts  and  sales  for  his  services,  and  at 
all  times  to  be  subject  to  the  defendant's  orders  as  to  collections  to  be  made 
and  business  to  be  sought,  the  sole  work  of  such  salesman  being  for  said  de- 
fendant. Lewis  V.  Garratt-Callahan  Co.,  2  Cal.  I.  A.  C.  Dec.  952.  Michi- 
gan. A  driver  employed  for  no  definite  time  to  haul  logs  for  a  lumber  com- 
pany and  subject  to  the  company's  right  to  discharge  him  at  any  time,  the  work 
being  done  under  the  control  of  the  company,  both  as  to  time  and  place.  Tut- 
tle  V.  Embury-Martin  Lumber  Co.  (Mich.)  158  N.  W.  875.  Wisconsin.  A  rail- 
road laborer,  who  was  paid  according  to  the  amount  of  work  done,  but  whose 
tools  were  furnished  by  the  employer,  and  who  had  no  capital,  no  special 
skill,  and  nothing  to  contract  for  except  the  sale  of  his  labor.  Erickson  v. 
Peppard  &  Burrill,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  27.  England.  A  quar- 
ryman  whose  tools  were  supplied  him,  and  who  was  paid  by  the  amount  of 
juaterial  he  worked,  although  he  had  power  to  hire  and  discharge  men  under 
him.  Evans  v.  Penwyllt  Dinas  Silica  Brick  Co.  (1902)  4  W.  C.  C.  101.  A 
quarryman  who  was  paid  by  the  ton  for  the  stone  he  quarried,  and,  although 
he  had  a  partner  and  six  workmen  under  him,  was  himself  under  the  quarry 
manager,  who  told  him  what  kind  of  stone  to  get,  where  to  put  the  refuse, 
and  who  could  have  discharged  him  for  disobedience.  Jones  v.  Penwyllt  Dinas 
Silica  Brick  Co.  (1913)  6  B.  W.  C.  O.  491,  C.  A.  A  worker  in  a  quarry,  paid 
for  exactly  the  number  of  days  he  worked,  at  a  rate  per  day,  although  he 
was  allowed  to  use  his  own  judgment  as  to  where  to  work  and  could  choose 
his  own  helpers.  Paterson  v.  Lockhart  (1905)  7  F.  954,  Ct.  of  Sess.  A  man  em- 
ployed to  break  steel  and  cinders  at  a  rate  per  ton,  employing  his  own  assist- 
ants. Vamplew  v.  Parkgate  Iron  &  Steel  Co.,  Ltd.  (1903)  5  W.  C.  C.  114, 
C.  A.  (Act  of  1897).  A  plumber,  hired  to  fix  some  pipes  and  supplied  with 
materials  by  the  owner,  who  superintended  the  work  and  paid  him  for  the 
work  by  the  hour.  McNally  v.  Fitzgerald  (1914)  7  B.  W.  C.  C.  24,  C.  A.  A 
man  hired  by  the  contractor  for  the  supply  of  road  metal  to  break  stones, 
the  contractor  pajing  him  a  piece  rate,  directing  the  locations  of  his  work, 
and  having  authority  to  discharge  him.  Boyd  v.  Doharty  (1910)  2  B.  W.  C. 
C.  257,  Ct.  of  Sess.  A  worker  who  hauled  stones  for  the  pay  of  5s.  a  day 
and  was  allowed  to  work  for  other  people  when  not  badly  needed  by  his  first 
employer.  O'Donnell  v.  Clare  County  Council  (1913)  6  B.  W.  C.  C.  457,  C.  A. 
A  man  hired  to  cart  milk  at  a  certain  reward  per  gallon,  who  furnished  his 
own  horse  and  wagon.     Clarke  v.  Bailieborough  Co-operative  Agricultural  & 

"  See  note  92  on  page  217.         ^^  gee  note  93  on  page  218.  "  See  note  94  on  page  219. 


215  PERSONS   ENTITLED  TO   COMPENSATION  §    66 

One  who  has  an  independent  business,  and  generally  serves  only 
as  a  contractor,  may  abandon  that  character  for  a  time  and  become 

Dairy  Society,  Ltd.  (1913)  47  Ir.  L.  T.  R.  113,  C.  A.  A  decorator  hired  to  paper 
ttie  walls,  who  came  and  went  when  he  pleased,  and  made  out  and  receipted 
his  bill  when  through.  Lewis  v.  Straubridge  (1912)  6  B.  W.  C.  C.  5GS,  C.  A. 
A  man  hired  to  haul  stone  from  a  quarry,  and  paid  a  certain  fixed  sum  per 
load.    Howells  v.  Thomas  (1905)  120  L.  T.  Jo.  79,  C.  A. 

Where  one  of  the  members  of  a  partnership  in  the  glazing  business  was  em- 
ployed by  the  principal  contractor  on  the  building  to  superintend  the  unload- 
ing of  the  glass,  which  was  not  included  in  the  partner's  contract  but  was 
outside  that  contract,  the  partner,  injured  while  assisting  with  the  unload- 
ing, was  an  employ^  of  the  principal  contractor,  and  not  an  independent 
contractor  with  respect  to  the  work  at  which  he  was  injured.  Dyer  v.  James 
Black  Masonry  &  Contracting  Co.  (Mich.)  158  N.  W.  959. 

One  who  is  employed  by  a  manufacturing  company  to  do  the  painting  of 
its  products,  the  manufacturing  company  furnishing  a  place  to  do  the  work  by 
the  piece  or  job,  the  person  employed  being  left  free  to  employ,  direct,  and 
discharge  his  helpers,  the  manufacturing  company  retaining  no  control  over 
the  mode  or  manner  of  doing  the  work,  except  that  the  person  employed  to 
do  the  painting  and  his  helpers  are  required  to  observe  shop  regulations  ap- 
plying to  all  employes  of  the  manufacturing  company,  is  not  an  independent 
contractor,  but  an  employ^.  It  follows  that,  being  an  employe  of  the  manufac- 
turing company,  he  acted  as  their  agent  in  employing  his  helpers,  and  they, 
too,  are  employes  of  the  manufacturing  company.  In  re  Chester  McDonough, 
vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  152.  A  helper  of  B.,  being  employed  to 
take  charge  of  a  certain  department  of  the  work,  injured  on  one  of  A.'s 
machines  while  in  the  course  of  employment  in  working  on  outside  work,  is 
to  be  regarded  as  A.'s  employe,  and  A.,  having  elected  under  the  provisions  of 
the  Compensation  Act  to  pay  compensation  direct  to  his  injured  employes,  is 
required  to  compensate  such  injured  employe;  the  principle  of  independent 
contractor  not  applying.  Robinson  v.  Newark  Reflector  Co.,  vol.  1,  No.  7, 
Bui.  Ohio  Indus.  Com.  p.  167.  Where  A.,  the  owner  of  a  factory,  employed 
B.  to  take  charge  of  a  part  of  the  work  done  in  the  factory,  paying  B.  partly 
by  the  piece  and  partly  by  the  hour  for  the  time  devoted  by  him  to  the  work, 
and  where  B.,  on  account  of  A.  not  having  sufficient  work  to  keep  him  busy 
all  the  time,  was  permitted  to  take  in  outside  work,  A.  furnishing  the  place, 
the  tools,  and  machinery  with  which  to  do  such  outside  work,  B.  employing 
his  own  help  for  the  work  he  did  for  A.,  as  well  as  for  the  outside  work,  the 
relation  of  independent  contractor  does  not  obtain  as  between  A.  and  B., 
either  as  to  work  done  for  A.  or  as  to  the  outside  work.    Id. 

Where  the  issue  arose,  and  the  testimony  was  in  direct  conflict,  as  to  wheth- 
er a  carpenter  was  employed  by  the  defendant,  or  took  the  job  at  a  contract 
price,  and  the  evidence  showed  that  the  carpenter  had,  prior  to  his  injury  and 


§  66  workmen's  compensation  216 

an  employe,  even  without  doing  work  of  a  different  nature  from 
that  to  which  he  is  accustomed.    He  may  be  a  contractor  as  to  part 

death,  been  paid  a  sum  in  excess  of  the  amount  claimed  by  the  defendant  to 
be  the  contract  price,  although  the  job  was  only  half  finished,  that  such  sum 
paid  was  exactly  equal  to  the  amount  due  for  the  labor  furnished  at  the  esti- 
mated wage,  that  the  specifications  of  the  work  were  very  indefinite,  that  de- 
fendant gave  instructions  as  to  the  work  during  its  performance  inconsistent 
with  what  would  be  the  case  if  the  carpenter  were  an  independent  contractor, 
and  that  the  alleged  contract  was  merely  for  the  labor  and  not  for  mate- 
rials, such  sum  was  at  the  most  an  estimate  of  the  probable  cost,  and  the 
carpenter  was  an  employe,  and  not  an  independent  contractor.  Connolly  v. 
Connolly,  2  Cal.  I,  A.  C.  Dec.  790.  Passing  up  lumber  to  a  carpenter  and  oth- 
erwise aiding  him  in  the  work  is  not  usual  for  a  contracting  builder,  where 
a  contract  has  been  let  for  a  lump  sum.  Doing  such  work  indicates  that  the 
carpenter  is  an  employe  within  the  meaning  of  the  Compensation  Act.  Crosby 
V.  Strong,  2  Cal.  I.  A.  C.  Dec.  40S.  A  night  watchman  was  employed  by  the 
defendant  at  a  salary  of  $30  per  month  to  watch  its  premises,  and  was  at 
the  same  time  employed  by  others  to  act  as  night  watchman  for  their  estab- 
lishments at  different  salaries.  Each  night  he  made  his  rounds,  covering  the 
premises  of  all  the  persons  so  employing  him.  The  fact  of  his  employment 
hj  the  others  was  known  to  and  approved  by  the  defendant,  but  the  defend- 
ant did  not  know  how  many  others  were  so  employing  him,  or  who  all  of 
^hem  were.  The  contract  of  hire  with  defendant  was  personal  in  nature, 
without  any  right  in  the  employe  to  employ  a  substitute  when  he  wished  to 
take  a  vacation,  and  he  was  given  specific  instructions  what  to  do  and  when 
to  do  it,  and  required  to  show  by  his  night  watchman's  clock  that  he  had 
made  good  for  the  month  before  his  monthly  salary  was  paid,  and  if  found 
delinquent  could  have  been  reprimanded,  disciplined,  or  discharged.  The  Com- 
mission held  that  the  relation  between  the  night  watchman  and  the  employer 
is  tliat  of  employer  and  employe,  and  not  of  independent  contractor.  Mason 
V.  Western  Metal  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  2S4.  A  teamster,  owning  his 
own  team  and  wagon,  contracted  to  do  hauling  for  an  employer,  and  agreed 
to  provide  a  team  and  driver  for  $6  per  day,  and  later  appeared  for  work  him- 
self, driving  the  team.  He  was  required  to  work  eight  hours  per  day,  and 
was  under  the  immediate  control  and  supervision  of  the  employer  as  to  the 
mode  of  doing  the  work,  and  the  employer  retained  the  power  and  right  to 
discharge  him  and  rule  his  team  oft  the  work  if  the  services  rendered  were 
not  satisfactory.  No  contract  was  made  for  a  specified  amount  of  hauling, 
or  specified  quantity  of  work  to  be  done,  or  specified  length  of  time  during 
which  the  services  should  be  rendered.  The  Commission  held  that  the  agree- 
ment amounted  to  a  contract  of  hire,  and  was  not  an  independent  contract 
for  the  furnishing  of  services,  though  it  further  appeared  that  one  week  aft- 
er the  beginning  of  the  employment  the  teamster  was  requested  to  and  did 


217  PERSONS   ENTITLED  TO   COMPENSATION  §    66 

of  his  service  and  a  servant  as  to  part.^^  Thus,  one  who  is  injured 
while  Operating  a  launch  to  bring  supplies  to  a  dredge  for  his  em- 

furnlsh  another  team  belonging  to  himself,  with  a  driver  hired  and  paid  for 
by  himself,  to  work  for  the  employer  at  $6  per  day  for  the  use  of  the  team 
and  driver ;  the  view  of  the  Commission  being  that,  while  it  is  true  that  the 
Injured  employe  may  have  been  an  independent  contractor  as  to  the  second 
team  provided  by  him  for  defendants'  work,  he  is  at  the  same  time  an  em- 
ploy§  under  the  terms  of  the  first  contract  made  between  himself  and  his 
employer.    Stevans  v.  Tittle,  2  Cal.  I.  A.  C.  Dec.  146. 

9  2  Where  a  soliciting  agent,  provided  with  a  horse  and  wagon  by  a  dealer 
in  furnishing  goods,  took  goods  for  distribution  and  sale  within  territory  as- 
signed to  him  and  was  paid  for  his  services  on  a  commission  basis,  it  appear- 
ing that  he  and  other  such  agents  returned  all  unsold  goods  and  were  cred- 
ited with  the  same  list  price  which  they  had  been  charged  up  with  when  they 
took  the  goods  out,  and  that  each  sale,  after  being  verified  by  a  collector  of 
the  firm,  was  taken  over,  and  any  possible  loss  assumed  by  the  firm,  and  all 
sales  were  made  in  the  name  of  the  firm,  such  agent  was  an  employe,  and 
not  an  independent  contractor.  Rosenberg  v.  Western  Mercantile  Co.,  2 
Cal.  I.  A.  C.  Dec.  673.  Payment  by  commission  is  equivalent  to  payment  of 
wages,  provided  there  is  a  contract  of  hire.  There  is  no  distinction  between 
the  relations  existing  between  applicant  and  defendant  under  their  contract 
and  that  ordinarily  existing  between  a  commercial  traveler,  who  is  paid  a 
commission  on  his  sales  in  lieu  of  wages,  and  his  employer.  In  both  instanc- 
es the  salesmen  are  expected  to  devote  their  whole  time  to  the  service  of 
the  employer.  Book  agents  or  canvassers,  on  the  other  hand,  are  not  as  a  rule 
called  upon  to  give  their  whole  time  to  the  service,  but  may  devote  as  much 
or  as  little  to  it  as  they  please.  It  follows  that  where  the  applicant  entered 
contracted  to  "devote  his  whole  time  and  energy  to  selling  the  lots"  of  de- 
fendant, and  not  to  sell  for  any  other  individual,  firm,  or  corporation,  and 
did  so  devote  his  time  for  two  years  preceding  the  accident  arising  during 
such  service,  the  basis  of  his  pay  being  entirely  commissions,  which  wore 
certain  percentages  of  the  payments  made  by  the  purchasers,  out  of  which  the 
agent  must  pay  his  own  traveling  and  living  expenses,  an  injury  sustained 
by  the  overturning  of  the  automobile  of  applicant,  while  he  was  proceeding 
as  directed  by  the  defendant  to  a  new  field  of  operations,  was  compensable, 
the  applicant  being  an  employe  and  not  an  independent  contractor.  Skid- 
more  V.  Brown,  2  Cal.  I.  A.  C.  Dec.  556.  Where  a  canvasser  was  given  by 
a  written  contract  exclusive  selling  territory  and  commissions  for  the  sale 
of  heaters  for  installation,  and  was  expected  to  and  did  give  the  whole  of 
his  time  to  the  business,  and  was  under  considerable  control  as  to  reporting 
progress  and  sales,  and  the  heaters  were  installed  by  the  selling  firm,  and. 


85  In  re  Powley,  169  App.  Div.  170,  154  N.  Y.  Supp.  426. 


§  66  workmen's  compensation  218 

ployer  was  an  employe  and  not  an  independent  contractor,  though 
he  was  an  independent  contractor  for  dredging  operations.^®     But 

unlike  another  canvasser  under  contract  with  the  firm,  he  was  not  required 
to  guarantee  the  purchase  price  of  heaters  sold,  he  was  an  employe,  and 
not  an  independent  contractor.  Horgan  v.  Kinney,  2  Cal.  I.  A.  C.  Dec.  1006. 
Where  a  bowling  alley  has  the  pins  set  up  in  its  various  alleys  by  boys, 
working  irregularly  as  they  may  happen  to  be  present  and  needed,  and  re- 
ceiving as  pay  25  per  cent,  of  the  sum  collected  from  the  games  which  they 
respectively  serve,  the  boys,  while  setting  pins,  are  employ§s,  and  not  con- 
tractors.   Weaver  v.  Eyster  &  Stone,  1  Cal.  I.  A.  C.  Dec.  563. 

93  The  fact  that  one  is  a  piece  worker  does  not  necessarily  determine  his 
status.  Travis  v.  Hobbs,  Wall  &  Co.,  2  Cal.  I.  A.  C.  Dec.  506.  Where  a 
farm  hand,  though  called  on  occasionally  to  do  various  jobs,  for  which  he  is 
paid,  is  occupied  mainly  with  cutting  wood  on  the  farm,  and  is  paid  there- 
for by  the  cord,  this  mode  of  payment  being  agreed  upon  because  the  owner 
cannot  be  present  to  supervise,  and  the  farm  hand  works  steadily  ten  hours 
a  day,  and  also  performs  other  volunteer  services  and  lives  on  the  farm,  the 
fact  that  he  is  paid  by  piece  work  will  not  make  him  an  independent  con- 
tractor. Fisher  v.  Dunshee,  2  Cal.  I.  A.  C.  Dec.  849.  Where  a  lather,  under 
contract  of  hire  to  lath  a  house  at  a  certain  price  per  thousand,  subject, 
however,  to  the  direction  and  control  of  the  subcontractor,  and  liable  to  dis- 
charge at  any  time  by  him,  he  was  an  employg,  and  not  an  independent  con- 
tractor. Stonaker  v.  Jones  &  Delaney,  2  Cal.  I.  A.  C.  Dec.  834.  A  wood- 
worker was  engaged  to  cut  out  pieces  of  wood  and  put  them  together  into 
lamps  for  35  cents  per  lamp,  and  in  order  to  expedite  work  was  allowed  to 
hire  two  helpers  at  a  weekly  rate  of  pay  fixed  by  the  defendant,  but  paid 
out  of  the  35  cents,  money  therefor  being  advanced  by  defendant.  All  ma- 
chines and  material  were  furnished  by  defendant.  The  woodworker  chose 
his  own  hours,  but  was  forbidden  using  machines  outside  working  hours. 
He  did  not  account  for  money  received  for  payment  of  helpers.  The  Com- 
mission held  that  he  was  an  employ^,  and  not  an  independent  contractor. 
Shaffer  v.  Southern  California  Hardwood  Mfg.  Co.,  2  Cal.  I.  A.  C.  Dec.  891. 
Where  a  woodcutter  is  engaged  by  the  agent  of  a  subcontractor  to  fell  trees 
and  cut  cordwood  on  the  premises  of  the  principal,  to  be  paid  by  the  cord, 
to  furnish  his  own  tools,  and  within  reasonable  limits  to  be  master  of  his 
own  hours  and  time,  and  is  paid  by  check  from  the  subcontractor,  and  sus- 
tains an  injury  resulting  in  his  death,  the  woodcutter  is  an  employe  of  the 
subcontractor,  not  an  independent  contractor.  Lachuga  v.  Kataoka,  2  Cal. 
I.  A.  C.  Dec.  766.  The  fact  that  applicant  was  paid  for  his  work  at  the  rate 
of  18  cents  for  every  tie  cut  by  him  was  not  by  itself  conclusive  that  he  was 
an  independent  contractor;    such  mode  of  payment  being  entirely  consistent 

9  0  In  re  Powley,  169  App.  Div,  170,  154  N.  Y.  Supp.  426. 


219  PERSONS   ENTITLED  TO   COMPENSATION  §    66 

where  the  owner  of  a  dredge,  after  leasing  same  to  an  independent 
contractor,  was  running  it,  he  was  not  an  employe  of  such  contrac- 
tor within  the  Workmen's  Compensation  Law,®^ 

A  physician  employed  on  salary  by  another  physician,  who  is 
under  contract  to  supply  medical  services  to  incapacitated  employes 
of  a  manufacturing  concern,  is  an  employe  of  the  latter  and  not 
an  independent  contractor,  although  allowed  to  follow  private  prac- 
tice when  his  services  are  not  required  on  contract  cases. ^^ 

Where  a  painter,  who  is  killed,  while  working  without  helpers, 
by  falling  from  a  scaffold,  has  previously  done  work  for  the  em- 
ployer and  been  paid  a  lump  sum  for  doing  painting  on  the  em- 
ployer's plant,  under  a  contract  specifying  the  kind  of  work  and  the 

with  his  being  an  employ^  on  a  piece  work  basis,  as  well  as  with  his  being 
an  independent  contractor.  Rose  v.  Pickrell,  1  Cal.  I.  A.  O.  Dec.  85.  An 
employe  who  claimed  that  he  was  paid  $3  per  day,  while  his  employer  claim- 
ed that  he  had  contracted  to  dig  a  sewer  at  10  cents  per  foot,  was  held  to  be 
an  employe,  and  not  an  independent  contractor.  Farley  v.  Koch,  2  Cal.  I.  A. 
C.  Dec.  986. 

9  4  Where  an  aviator  contracted  with  a  moving  picture  concern  to  assist  in 
the  making  of  films  with  his  aeroplane  at  $5  per  day  and  $75  for  the  first 
flight,  and  $50  each  subsequent  flight,  he  was  an  employe,  and  not  an  inde- 
pendent contractor.  Stites  v.  Universal  Film  Mfg.  Co.,  2  Cal.  I.  A.  C.  Dec. 
670.  Where  an  automobile  mechanic  was  engaged  to  overhaul  and  repair  an 
automobile  on  the  premises  of  the  employer,  and  to  be  paid  40  cents  an  hour 
for  all  time  put  in,  though  he  supplied  at  retail  prices  parts  which  he  had 
purchased  at  dealers'  prices,  he  was  an  employe,  and  not  an  independent  con- 
tractor. Detwiler  v.  Kettering,  2  Cal.  I.  A.  C.  Dec.  810.  A  chair  man  in 
an  exposition  relied  for  his  earnings  on  casual  patrons,  and  was  furnished 
his  equipment  by  the  chair  concessionaire,  and  required  to  conform  to  regu- 
lations as  to  the  time  of  taking  out  and  returning  chairs  and  as  to  the  order 
in  which  patrons  should  employ  chair  men.  He  was  not  allowed  to  sublet 
his  chair,  and  was  required  to  charge  only  a  definite  price  and  to  pay  in  ad- 
vance daily  a  specific  rental  for  his  chair,  with  permission  to  retain  all 
earnings  without  an  accounting,  this  method  of  remuneration  being  adopted 
as  the  most  practical  for  the  concessionaire.  The  Commission  held  that  he 
was  an  employe,  and  not  an  independent  contractor.  Leon  v.  Exposition 
Wheel  Chair  Co.,  2  Cal.  I.  A.  C.  Dec.  845. 

9  7  In  re  Powley,  169  App.  Div.  170,  154  N.  Y.  Supp.  426. 

08  Getzlafif  v.  Enloe,  3  Cal.  T.  A.  C.  Dec.  18. 


§  67  workmen's  compensation  220 

material  to  be  used,  he  is  an  employe,  rather  than  an  independ- 
ent contractor,^^  though  his  contract  is  in  writing,  and  he  agreed 
to  do  the  work  satisfactorily,  and  to  do  it  over  if  it  did  not  endure 
a  specified  length  of  time.^ 

§  67.     Federal  Act 

In  order  that  one  may  come  within  the  federal  Act,  he  must  be 
a  "person  employed  by  the  United  States,"  and  not  a  mere  con- 
tractor. A  plate  printer  in  the  Bureau  of  Engraving  and  Printing 
paid  by  the  piece,^  a  contract  tie  maker,  paid  by  the  piece,  who 
boards  himself  and  hires  and  pays  his  own  help,^  and  the  owner 
of  a  power  boat  chartered  to  the  government  and  operated  by  the 
owner  in  its  service,  are  contractors,  and  not  employes  of  the 
United  States.*  A  workman  employed  by  a  government  contractor 
is  not  employed  by  the  government.^  On  the  other  hand,  one  em- 
ployed and  carried  on  the  pay  rolls  of  the  reclamation  service  is 
employed  by  the  government  when  performing  work  being  done 
by  a  contractor  for  the  government,  if  directed  to  do  so  by  his  su- 
perior.® It  has  been  determined  that  a  workman  employed  in  the 
Forest  Service,  designated  with  others  to  perform  certain  work 
which  the  government  was  performing  under  agreement  with  coun- 
ty supervisors,  the  latter  bearing  the  expense,  was  employed  by 
the  United  States  and  entitled  to  compensation  for  mjuries  sus- 
tained while  so  employed/ 

99  (Wk.  Comp.  Law  as  amended  in  1914  [Laws  1914,  c.  41]  §  2,  group  42) 
In  re  Rheiuwald,  168  App.  Div.  425,  153  N.  Y.  Supp.  598. 

lid. 

2  In  re  Clark,  Op.  Sol.  Dept.  of  L.  49. 

3  In  re  Contractors  or  Jobbers  at  Neopit  Indian  Sawmill,  April  8,  1915. 
Op.  Sol.  Dept.  of  K  p.  58. 

4  In  re  Hanson,  Op.  Sol.  Dept.  of  L.  51. 

5  In  re  Lipscomb,  Op.  Sol.  Dept.  of  L.  50. 

6  In  re  Crawford,  Op.  Sol.  Dept.  of  L.  56. 

7  In  re  Kenny,  Op.  Sol.  Dept.  of  L.  57. 


221  PERSONS   ENTITLED  TO   COMPENSATION 


69 


§  68.     Employe  of  independent  contractor 

Under  the  New  Jersey  Act,  the  employer  is  liable,  for  injury  to 
an  employe  of  an  independent  contractor  from  defects  in  ways, 
works,  machinery,  or  plant,  only  when  he  furnishes  same,  and  not 
when  they  are  furnished  by  the  independent  contractor,  over  whose 
negligent  conduct  in  not  remedying  defects  the  employer  has  no 
control.®  The  employe  of  an  independent  contractor,  who  is  a 
subscriber,  under  the  Massachusetts  Act,  has  the  same  rights 
against  the  owner's  insurer,  as  though  it  had  directly  insured  the 
employer.^  Where  a  teamster  was  sent  by  his  employers  to  get 
a  load  of  concrete  sills  from  an  inclosure  belonging  to  certain 
building  contractors,  at  their  request,  and  on  arriving  was  assisted 
by  a  son  of  one  of  the  contractors,  who  selected  the  sills  to  be  taken, 
and  was  injured  by  the  falling  of  one  of  the  sills  while  it  was  being 
carried  to  the  wagon,  he  was  not  an  employe  of  the  contractors, 
nor  was  he  engaged  in  the  usual  course  of  their  business  as  con- 
tractors.^" Where  the  inventor  of  a  plant  for  pumping  oil  was  em- 
ployed by  a  company  selling  the  machine  to  superintend  and  con- 
trol the  installation  of  a  plant  upon  the  premises  of  the  subscriber, 
his  employers  being  independent  contractors  with  respect  to  the 
subscriber,  the  subscriber's  insurer  could  not  be  held  liable  for  the 
death  by  accident  of  the  inventor  while  so  employed;  he  being  in 
no  sense  an  employe  of  the  subscriber.^^ 

§  69.     Officers 

Since  public  officers  are  not  entitled  to   compensation   as  em- 
ployes, it  becomes  important  to  distinguish  between  officers  and 

8  Kennedy  v.  David  Kaufman  &  Sons  Co.  (N.  J.  Sup.)  91  Atl.  99.     As  to 
who  are  independent  contractors,  see  §  66,  ante. 
8  WIv.  Comp.  Act,  pt.  3,  §  17. 

10  In  re  Comerford,  In  re  Contractors'  Mut.  Liab.  Ins.  Co.  (Mass.)  113  N. 
E.  460. 

11  Western  Indemnity  Co.  v.  State  Indus.  Aca  Com.  (Cal.)  158  Pac.  1033 
(annulling  award  of  commission). 


§  69  workmen's  compensation  222 

employes.i2  ^g  g^j^  i^^  Judge  Cooley:  "The  officer  is  distin- 
guished from  the  employe  in  the  greater  importance,  dignity,  and 
independence  of  his  position;  in  being  required  to  take  an  official 
oath,  and  perhaps  to  give  an  official  bond ;  in  the  liability  to  be  call- 
ed to  account  as  a  public  oiTender  for  misfeasance  or  nonfeasance 
in  office ;  and  usually,  though  not  necessarily,  in  the  tenure  of  his 
position."  ^^  Except  where  the  statute  otherwise  provides,  as  is 
done  by  the  Ohio  Act,^*  a  policeman  is  not  an  "employe"  of  the  city, 
but  is  an  "officer"  holding  an  office  of  public  trust.^'^  But  a  village 
night  marshal,  performing  the  duties  of  a  policeman  at  night,  was 


12  (Code  Supp.  1913,  tit.  12,  c.  Sa,  §  2477ml6  [b])  Op.  Sp.  Counsel  to  Iowa 
Indus.  Com.  (1915)  pp.  3,  7. 

13  Blynn  v.  City  of  Pontiac,  185  Mich.  35,  151  N.  W.  681 ;  Mr.  Justice  Cooley 
in  Throop  v.  Tangdon,  40  Mich.  673.  A  deputy  surveyor,  appointed  by  the 
surveyor  general,  received  a  personal  injury  vrhile  surveying  lumber  for  the 
subscriber  and  claimed  compensation  as  an  "employ^."  The  evidence  showed 
that  he  was  a  public  official;  that  he  could  not  survey  lumber  under  the  law 
"for  any  person  by  whom  he  is  employed"  ;  that  his  duties  were  fixed  by 
statute ;  that  he  was  under  the  control  and  direction  of  the  surveyor  general ; 
and  that  his  salary  was  fixed  by  law  and  was  in  the  form  of  fees  covering  the 
service  rendered.  The  Commission  held  that  he  was  not  an  "employe." 
Emerson  v.  Mass.  Employes'  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  181  (deci- 
sion of  Com.  of  Arb.). 

14  A  lieutenant  of  police  of  a  city  not  maintaining  a  policemen's  pension 
fund  is  an  "employe"  within  the  meaning  of  paragraph  1  of  section  14  of  the 
Ohio  Act.    In  re  Frances  E.  Lyman,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  182. 

15  Blynn  v.  City  of  Pontiac,  185  Mich.  35,  151  N.  W.  681.  Policemen  in 
the  city  of  Minneapolis  are  officers  of  the  city,  and  hence  are  excluded  from 
the  provisions  of  the  act.  Gen.  Laws  1913,  c.  467,  §  34,  subd.  1  [Gen.  St.  1913, 
§  8230])  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  26.  The  Court 
of  Criminal  Appeals  of  Texas  has  decided  that  "a  policeman  of  a  city  is  a 
public  officer  holding  his  office  as  a  trust  from  the  state,  and  not  as  a  matter 
of  contract  between  himself  and  the  city,  the  word  applying  equally  to  every 
member  of  the  police  force,"  and  that  "a  policeman  is  a  public  officer  of  the 
state  expressly  charged  by  the  statutes  with  enforcing  a  large  body  of  the 
criminal  law."  Ex  parte  Preston,  72  Tex.  Cr.  R.  77,  161  S.  W.  115.  See,  also, 
McQuillin  on  Municipal  Corporations,  II,  940,  and  V,  5049 ;   28  Cyc.  497. 


223  PERSONS   ENTITLED  TO   COMPENSATION  §    69 

an  employe  subject  to  the  Wisconsin  Act.^^     Firemen  ^^  and  dep- 
uty sheriffs  on  a  fee  basis  are  officers  rather  than  employes. ^^ 

16  (Wk.  Comp.  Law,  St.  1915,  §§  2394—3  to  2394—7)  Village  of  Kiel  v.  In- 
dustrial Commission  of  Wisconsin  (Wis.)  158  N.  W.  68. 

IT  Firemen  of  the  city  of  Minneapolis,  appointed  annually  and  required  to 
take  an  oath  of  office,  are  officers  of  the  city,  and  hence  excluded  from  the 
provision  of  the  act.  (Gen.  Laws  1913,  c.  467,  §  34,  subd.  1  [Gen.  St.  1913,  § 
8230])  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  24.  Where  part  of 
the  duty  of  a  police  constable  was  to  act  as  fireman,  and  he  was  injured  while 
so  doing,  he  was  not  a  workman.  Sudell  v.  Blackburn  Corporation  (1910)  3 
B.  W.  C.  C.  227,  C.  A. 

18  Where  a  deputy  sheriff,  injured  while  making  an  arrest,  was  appointed 
for  his  own  convenience,  received  no  compensation  from  the  sheriff  of  the 
county,  and  was  to  receive  no  compensation  other  than  fixed  fees  for  serving 
of  legal  process,  he  was  not  an  employe  as  defined  by  the  Compensation  Act, 
and  his  injury  is  not  compensable.  Yancey  v.  Couiity  of  Los  Angeles,  2  Cal.  I. 
A.  C.  Dec.  601. 


§  70  workmen's  compensation  224 

ARTICLE  II 

DEPENDENTS 

Section 

70.  Who  are  dependents  and  what  constitutes  dependency. 

71.  Partial  dependency. 

72.  Total  dependency. 

73.  Alien  dependents. 

74.  What  children  may  be  dependents. 

75.  Illegal  and  divorced  wives — Marriage. 

76.  Nonsupport  and  desertion. 

77.  Dependents  under  federal  Act. 

78.  Claim  of  dependent. 

79.  Payment  to  representatives — Survival  of  claim. 

80.  Determination  of  question  of  dependency. 

81.  Presumption  of  dependency — Husband  and  wife. 

82.  Parent  and  child. 

83.  California. 

84.  Proof  of  dependency. 

§  70.     Who  are  dependents  and  what  constitutes  dependency 

Compensation  Acts  are  founded  on  the  theory  of  compensation, 
not  only  to  the  injured  workman,  but  to  his  dependents  in  case  of 
his  death. ^®  While  ordinarily  no  exact  standard  for  the  determina- 
tion of  dependency  is  prescribed  by  statute,  and  it  is  difficult,  if  not 
impossible,  to  formulate  such  a  standard,-*'  it  may  be  said  in  gen- 
eral terms  that  a  "dependent"  is  one  who  looks  to  another  for  sup- 
port, one  dependent  on  another  for  the  ordinary  necessities  of  life, 
for  a  person  of  his  class  and  position, ^^  and  that,  to  be  entitled  to 
compensation  as  a  dependent,  one  need  not  deprive  himself  of  the 

19  In  re  Nelson,  217  Mass.  467,  105  N.  E.  357. 

A  provision  in  the  Constitution  authorizing  the  Legislature  to  enact  laws 
providing  "compensation  to  employes,"  in  view  of  the  trend  of  like  legislation, 
must  be  construed  to  authorize  laws  not  only  giving  compensation  to  the  em- 
ployes themselves,  but  also  to  those  dependent  upon  them  for  support.  West- 
ern Metal  Supply  Co.  v.  Pillsbury  (Cal.)  156  Pac.  491. 

2  0  Miller  v.  Riverside  Storage  Co.  (Mich.)  155  N.  W.  462. 

21  Jackson  v.  Erie  R.  Co.,  86  N.  J.  Law,  550,  91  Atl.  1035;  Tirre  v.  Bush 
Terminal  Co.,  172  App.  Div.  3S6,  158  N.  Y.  Supp.  883;    Dazy  v.  Apponaug  Co., 


225  PERSONS   ENTITLED  TO   COMPENSATION  §    70 

ordinary  necessities  of  life  to  which  he  has  been  accustomed,  but 
he  cannot  demand  compensation  merely  to  add  to  his  savings  or  in- 
vestments.^^ It  follows  that  dependency  does  not  depend  on 
whether  the  alleged  dependents  could  support  themselves  without 
decedent's  earnings, ^^  or  so  reduce  their  expenses  that  they  would 
be  supported  independent  of  his  earnings,^*  but  on  whether  they 
were  in  fact  supported  in  whole  or  in  part  by  such  earnings,-^  un- 

36  R.  I.  81,  89  Atl.  160 ;    Simmons  v.  White  Bros.,  80  L.  T.  344,  1  W.  C.  C. 
89 ;  Main  Colliery  Co.,  Ltd.,  v.  Davies,  2  W.  C.  C.  108. 
2  2  Dazy  V.  Apponaug  Co.,  36  R.  I.  81,  89  Atl.  160. 

23  Miller  v.  Riverside  Storage  &  Cartage  Co.  (Mich.)  155  N.  W.  462. 

In  Howells  v.  Vivian  &  Sons,  85  L.  T.  529,  4  W.  C.  C.  106,  it  was  said: 
"The  test  of  dependency  is  not  whether  the  family  could  support  life  without 
the  contributions  of  the  deceased,  but  whether  they  depended  upon  them  as 
part  of  that  income  or  means  of  living."  The  court  held  that,  where  the  sup- 
port of  a  deceased  son  cost  the  family  14s.  a  week,  and  he  added  25s.  a  week 
to  the  family  income,  his  father  earning  33s.  9d.  a  week,  the  question  of 
whether  or  not  the  family  could  support  itself  without  his  earnings  is  not  a 
proper  criterion  of  their  dependency. 

24  A  dependent  under  the  Act  is  not  necessarily  one  to  whom  the  contribu- 
tions of  the  injured  or  deceased  workman  are  necessary  to  his  or  her  support 
of  life;  the  test  is  whether  the  contributions  were  relied  upon  by  the  depend- 
ent for  his  or  her  means  of  living,  judging  this  by  the  class  and  position  in 
life  of  the  dependent.  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245 ; 
Howells  V.  Vivian  &  Sons,  85  Lt.  529,  4  W.  C.  C.  106 ;  French  v.  Underwood 
(1903)  5  W.  C.  C.  119  (Act  of  1897). 

2  5  Buchanan  v.  White  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  790;  Pryce  v.  Pen- 
rickber  Nav.  Colliery  Co.,  [1902]  1  K.  B.  221. 

The  mother  and  sister  of  a  deceased  employe  who  were  re.sidents  of  Italy 
and  unable  to  work,  were  found  to  be  wholly  dependent  upon  him,  though  they 
occasionally  received  small  remittances  from  another  sister,  who  was  a 
member  of  the  family,  earning  six  or  seven  cents  a  day,  and  from  an  aunt, 
there  being  evidence  that  such  remittances  were  wholly  gratuitous,  and  that 
the  pittance  earned  by  the  sister  was  hardly  sufficient  for  her  own  support. 
Petrozino  v.  American  Mut.  Liability  Co.  (Caliendo's  Case),  219  Mass.  498,  107 
N.  E.  370. 

A  workman's  daughter  was  not  dependent  upon  him  for  support  where,  for 
several  years,  she  had  resided  with  and  been  cared  for  by  another;  nor 
where  the  workman's  wife  had  been  supported  by  the  state  in  an  insane 
asylum  for  more  than  nine  years,  without  any  contribution  to  her  support 

HON.COMP. — 15 


§  70  workmen's  compensation  226 

der  circumstances  indicating  an  intent  on  the  part  of  deceased  to 
furnish  such  support.^®     Occasional  gifts,  not  being  contributions 

being  made  by  deceased,  was  she  dependent  upon  him  for  support.  Roberts 
V.  Whaley  (1916,  Mich.)  15S  N.  W.  209. 

Where  deceased  and  his  brotlier  made  their  homes  at  their  sister's  house, 
though  away  from  Monday  until  Saturday,  but  spending  their  entire  spare 
time  at  her  house  from  Saturday  until  Monday,  and  each  paying  her  $5  a 
week,  which  payments  were  materially  greater  than  what  was  received  from 
her,  the  sister  was  found  to  be  a  dependent.  Hammill  v.  Pennsylvania  R. 
Co.,  87  N.  J.  Law,  3SS,  94  Atl.  313.  That  the  workman's  father  worked  and 
earned  $26.40  a  week,  and  that  the  mother  and  sisters  also  worked,  did  not 
alter  the  fact  that  decedent's  earnings  went  to  the  general  support  of  the 
family,  and  that  the  amount  contributed  by  him  amounted  to  more  than  his 
board,  lodging,  and  other  expenses,  and  that  the  family  were  dependents,  in 
that  they  derived  substantial  benefit  from  the  fact  that  he  lived  with  them 
and  voluntarily  gave  all  his  wages  into  the  common  fund.  Conners  v.  Public 
Service  Electric  Co.  (1916,  N.  J.)  97  Atl.  792.  Evidence  that  an  adult  work- 
man turned  over  his  wages  to  his  father,  and  that  his  sister  received  substan- 
tial benefit  therefrom,  authorized  an  award  of  compensation  to  her,  whether 
she  was  an  adult  or  a  minor.  Id.  Decedent's  mother  was  actually  dependent 
upon  him  where  decedent,  who  was  18  years  old,  his  stepfather,  and  seven 
other  children  constituted  the  family,  and  it  appeared  that  the  husband 
earned  $11  a  week  and  decedent  $6,  of  which  he  contributed  $5  to  the  support 
of  the  family,  and  that  the  family  had  no  other  property  or  income.  Krauss 
V.  Fritz  &  Son,  Inc.,  87  N.  J.  Law,  321,  93  Atl.  578.  Proof  that,  prior  to  and 
up  to  the  time  of  his  death,  decedent  gave  his  earnings  to  his  father,  and 
that  the  father  had  no  other  income  or  means  of  support,  justifies  a  finding 
that  the  father  was  an  actual  dependent  of  decedent.  (P.  L.  1911,  p.  139,  §  2, 
par.  12)  Reardon  v.  Philadelphia  &  R.  Ry.  Co.,  85  N.  J.  Law,  90,  88  Atl.  970. 

Where  the  deceased  workman's  sister  was  an  unemployed  schoolgirl,  largely 
supported  by  his  earnings,  she  was  a  "dependent."  (Consol.  Laws,  c.  67) 
Walz  V.  Holbrook,  Cabot  &  Rollins  Corp.,  170  App.  Div.  6,  155  N.  Y.  Supp.  703. 

In  Kane  v.  New  Haven  Union  Co.,  1  Conn.  Comp.  Dec.  492,  it  was  held 
that  where  a  minor  son  contributed  all  of  his  earnings,  $11  per  week,  to  a 
family  fund,  receiving  therefrom  his  clothes  and  personal  expenses,  his  father 
was  a  dependent. 

Where  the  mother  of  a  deceased  employe,  living  with  her  husband  and 

2  6  Dependency  in  fact  within  section  19  (b)  of  the  California  Act  refers  to 
the  receipt  of  support  under  circumstances  indicating  an  intent  of  deceased 
to  furnish  support  to  the  dependent.  Prichard  v.  American  Beet  Sugar  Co., 
2  Cal.  I.  A.  C.  Dec.  341.  The  intent  of  a  son  to  contribute  to  his  parents'  sup- 
port must  be  clearly  shown  to  establish  dependency.  Da  Luz  v.  Rideout,  2 
Cal.  I.  A.  C.  Dec.  359. 


227  '     PERSONS   ENTITLED   TO   COMPENSATION  §    70 

for  support,  do  not  prove  dependency ;  ^^  nor  does  a  moral  obliga- 
tion of  support  to  be  effectuated  in  the  future  constitute  depend- 

sons,  received  regular  contributions  toward  tlie  support  of  herself  and  fami- 
ly, and  it  appears  that  the  husband  and  sons  were  all  employed  in  gainful 
occupations  under  the  same  employer,  the  Commission  held  that,  while  it 
did  not  appear  that  the  contributions  were  necessary  to  her  support,  it  did 
appear  that  they  were  made,  and  this  made  her  a  dependent.  Buchanan  v. 
White  Lumber  Co.,  supra.  But  where  the  father  of  a  deceased  employe, 
claiming  dependency  because  of  his  being  a  paralytic,  is  found  to  be  receiv- 
ing a  total  disability  allowance  from  the  Foresters  lodge,  and  to  have  receiv- 
ed no  contributions  from  the  deceased  sou  for  a  year  past,  he  is  not  depend- 
ent. Murphy  v.  Standard  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  304.  Where  it  appear- 
ed tb  '.  after  contributing  for  several  years  to  his  mother's  support,  an  em- 
ploye had  for  several  years  prior  to  his  death  discontinued  such  contribu- 
tions and  made  payments  on  a  small  ranch,  to  which  he  intended  bringing; 
her  to  live  with  him  on  completion  of  the  purchase  and  the  building  of  a 


2  7  Da  Luz  V.  Eideout,  supra. 

Evidence  of  occasional  gifts  by  the  workman  to  his  brother  does  not  es- 
tablish dependency  of  such  brother.  Hollerou  v.  Hill,  2  Cal.  I.  A.  C.  Dec.  289. 
Evidence  of  contributions  made  to  a  mother  in  the  nature  of  occasional 
gifts,  and  not  as  contributions  to  her  support,  does  not  establish  dependency. 
Avery  v.  Pacific  Gas  &  Electric  Co.,  2  Cal.  I.  A.  C.  Dec.  311.  Where  a  mother 
received  occasional  sums  sent  to  her  by  her  son,  only  at  irregular  intervals 
and  on  request,  such  sums  were  merely  occasional  gifts,  not  regular  contribu- 
tions for  support,  and  the  mother  was  not  a  dependent  of  the  son.  Turley 
V.  Bible  Institute  Building  Co.,  1  Cal.  I.  A.  C.  Dec.  472.  Where  deceased  has 
not  for  three  years  before  his  death  contributed  regularly  to  the  support  of 
his  parents,  but  has  at  irregular  intervals  sent  money  to  them  as  remembranc- 
es, the  parents  are  not  dependent  on  him.  Cal.  State  Board  of  Prison  Di- 
rectors V.  Dickerson,  1  Cal.  I.  A.  C.  Dec.  262. 

In  Blackall  v.  Winchester  Repeating  Arms  Co.,  1  Conn.  Comp.  Dec.  183, 
where  the  father  of  the  deceased  testified  that  she  had  never  had  steady  em- 
ployment, and  it  appeared  that  she  was  barely  self-supporting,  if  that,  small 
sutus  given  at  various  times  to  her  grandmother,  who  at  other  times  helped 
her  to  buy  clothes,  do  not  make  the  grandmother  dependent  upon  her.  In 
Blanton  v.  Wheeler  &  Howes  Co.,  1  Conn.  Comp.  Dec.  415,  where  it  appeared 
that  the  claimant  daughter  of  the  deceased  workman  was  married  and  liv- 
ing apart  from  him,  was  earning  a  little  herself,  and  apparently  as  well  sit- 
uated as  her  father,  though  she  received  small  irregular  gifts  of  money  from 
him,  which  she  used  for  living  expenses,  the  commissioner  decided  as  a  ques- 
tion of  fact  that  she  was  not  a  dependent  within  the  meaning  of  the  Act. 


§  70  workmen's  compensation  228 

ency  in  fact.^'  The  existence  or  nonexistence  of  a  legal  obligation 
to  support,  though  persuasive  and  a  factor  to  be  considered  in  de- 
house,  her  dependency  on  him  was  not  shown.  Prichard  v.  American  Beet 
Sugar  Co.,  2  Cal.  I.  A.  C.  Dec.  341. 

Where  the  deceased  worlcman  lived  at  home  with  liis  widowed  mother  and 
a  sister  who  did  the  housework,  his  only  brother  living  in  another  city  and 
earning  sufficient  to  support  himself,  and  turned  over  all  of  his  wages  to  his 
mother,  she  was  the  only  dependent.  Maire  v.  Wm.  Landauer  &  Co.,  Rep. 
Wis.  Indus.  Com.  1914-15,  p.  20. 

Where  a  deceased  employ^  was  survived,  besides  a  wife  and  child,  by  his 
mother  and  two  sisters,  aged  23  and  9  years,  but  had  never  contributed  any- 
thing toward  the  support  of  any  of  the  three  latter,  they  were  not  depend- 
ent upon  him  to  any  extent.  In  re  Laura  Shaffer,  vol.  1,  No.  7,  BuL  Ohio 
Indus.  Com.  p.  7.  A  sister  of  full  age  was  neither  wholly  nor  partially  de- 
pendent on  an  unmarried  brother  with  whom  she  did  not  reside,  though  he 
occasionally  gave  her  small  sums  of  money,  where  she  had  been  regularly 
employed  for  some  years  at  from  $9  to  $10  a  week.  In  re  Bertha  R.  Cavett, 
vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  150.  An  employe  was  killed  in  the 
course  of  his  employment  leaving  surviving  him  a  widow  and  a  son  35  years 
of  age,  mentally  and  physically  deficient,  but  who,  for  a  number  of  years 
prior  to  and  at  the  time  of  the  death  of  the  workman,  was  employed  at  a 
weekly  wage  of  $7.50.  The  Commission  held  that  the  son  was  not  wholly  or 
partially  dependent  upon  deceased.  In  re  Frances  Williams,  vol.  1,  No.  7, 
Bui.  Ohio  Indus.  Com.  p.  31. 

Where  the  earnings  of  a  workman  and  his  two  sons  combined  to  support 
the  whole  family,  and  all  three  were  killed  in  the  same  accident,  the  widow 
was  a  dependent  of  all  three.  Hodgson  v.  Owners  of  West  Stanley  Colliery 
(1910)  3  B.  W.  C.  C.  260,  H.  L.,  and  2  B.  W.  C.  C.  275,  C.  A.  Where  a  father 
who  received  10s.  a  week  from  his  son  and  was  earning  26s.  a  week  by  his 
own  efforts,  he  was  not  dependent,  Arrol  &  Co.,  Ltd.,  v.  Kelly  (1905)  7  F. 
906,  Ct.  of  Sess.  (Act  of  1S97). 

2  8  Prichard  v.  American  Beet  Sugar  Co.,  2  Cal.  I.  A.  C.  Dec.  341. 

Where  a. son  of  the  deceased  employe  is  nineteen  years  old,  and  in  his  di- 
vorced mother's  custody,  with  no  provision  for  his  support  by  his  father,  and 
no  contributions  to  such  support  in  fact  made  by  the  father,  the  son  is  not  a 
dependent.    Dolbeer  &  Carson  Lumber  Co.  v.  Watson,  1  Cal.  I.  A.  C.  Dec.  654. 

In  Pinel  v.  Rapid  Ry.  System,  184  Mich.  169,  150  N.  W.  897  (Comp.  Laws 
1897,  §  4487  et  seq.),  it  was  held  that  where  the  mother  of  a  workman  was 
living  apart  from  him  at  the  time  of  his  death  and  was  not  dependent  upon 
him,  and  he,  though  under  a  moral  obligation,  was  under  no  legal  obligation 
to  support  her,  she  was  not  a  "dependent."  The  court  said:  "The  claimant 
did  not  belong  to  the  class  conclusively  presumed  by  the  compensation  law 
to  be  a  dependent.    On  the  date  of  the  accident  it  is  conceded  claimant  was 


229  PERSONS   ENTITLED  TO   COMPENSATION  §    70 

termining  dependency,^^  is  not  conclusive  unless  made  so  by  stat- 
ute. Purely  voluntary  contributions  may  establish  dependency.^" 
Thus,  voluntary  contribution  to  the  support  of  a  workman's  minor 
child  fixes  dependency  as  a  matter  of  fact,  though  the  child  has  been 
awarded  to  its  mother  by  a  divorce  decree  which  makes  no  provi- 
sion for  support  by  the  father,  and  entitled  the  child  to  an  award 

not  dependent  by  reason  of  any  support  furnished  her  by  the  deceased.  On 
the  date  of  the  accident  she  was  not  dependent  on  the  deceased  by  force  of 
any  order  of  court  based  upon  section  4487  et  seq.  A  son  is  always  under 
moral  obligation  to  assist  his  indigent  mother,  but  he  is  under  no  legal  ob- 
ligation to  do  so  until  proceedings  under  the  statute  have  resulted  in  an  or- 
der compelling  him  to  do  so.  No  such  order  was  in  force  at  the  time  of  the 
accident ;  therefore  *  *  *  he  was  under  no  legal  obligation  at  that  time 
to  support  his  mother."  This  case  is  supported  by  Rees  v.  Penrikher  Nav. 
Co.,  S7  L.  T.  661,  5  W.  C.  C.  117 ;  Schwanz  v.  Wujek,  163  Mich.  492,  128  N.  W. 
731. 

In  Merriman  v.  Scovill  Mfg.  Co.,  1  Conn.  Comp.  Dec.  596,  where  the  deceas- 
ed sou  had  agreed  with  his  father  that  he  was  to  be  allowed  to  keep  and  use 
his  own  wages,  and  was  to  board  at  home  without  any  present  payments, 
but  was  to  pay  $3  per  week  for  such  board  after  he  had  obtained  an  educa- 
tion and  was  able  to  reimburse  his  father,  it  was  held  that  the  father  could 
not  be  held  to  be  a  dependent  upon  the  strength  of  such  expected  payments. 

29  A  ten  year  old  child  of  a  workman  by  his  first  wife,  who,  though  she 
had  not  lived  with  her  father  and  stepmother  for  five  years  previous  to  his 
death,  had  not  been  adopted  by  the  people  with  whom  she  was  living,  and 
expected  to  return  to  live  with  her  father  at  any  time,  was  a  dependent. 
(Gen.  Laws  1913,  c.  467,  §  14  [Gen.  St.  1913,  §  8208])  Op.  Atty.  Gen.  on  Minn. 
Wk.  Comp.  Act,  Bui.  11,  p.  31. 

Where  all  five  sons  of  a  widow  were  liable  for  her  support,  but  one  really 
provided  her  support,  and  he  was  killed,  she  was  totally  dependent  upon  him. 
Rintoul  V.  Dalmeny  Oil  Co.,  Ltd.  (1909)  1  B.  W,  C.  C.  340,  Ct.  of  Sess.  Where 
a  workman  gave  the  wife  and  two  children  he  had  deserted  only  trifling 
amounts  for  two  years,  and  then  when  a  decree  of  aliment  was  rendered 
against  him,  disappeared  entirely,  and  was  not  heard  of  until  he  died  a  year 
and  a  half  later,  the  children  were  held  to  be  dependent.  Young  v.  Niddrie 
&  Benhar  Coal  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  774,  H.  L.,  and  (1912)  5  B.  W.  C. 
C.  552,  Ct.  of  Sess. 

30  Death  benefits  under  the  Act  are  not  limited  to  those  for  whose  support 
the  deceased  workman  was  legally  chargeable.  "Dependents"  include  those 
supported  by  the  workman's  voluntary  contributions.  Walz  v.  Holbrock, 
Cabot  &  Rollins  Corp.,  170  App.  Div.  6,  155  N.  Y.  Supp.  703. 


§  70  workmen's  compensation  230 

of  death  benefits  based  on  the  amount  of  such  contributions ;  ^^  but 
voluntary  contributions  of  money,  support,  or  service  by  a  brother 
to  a  sister,  or  by  a  sister  to  a  brotlier,  are  not  necessarily  evidence 
of  the  dependency  of  either,  or  of  the  extent  of  the  dependency. ^^ 
Minority  of  a  deceased  workman  does  not  prevent  his  parents  from 
being  dependent  on  him.^^  The  husband  of  the  mother  of  an  il- 
legitimate son,  when  not  the  putative  father,  is  not  a  dependent  of 
the  son,  so  as  to  be  entitled  to  compensation  for  his  death. ^* 

Compensation  cannot  be  awarded  to  alleged  dependents  not  be- 
longing to  the  classes  of  relatives  enumerated  by  statute.^^  The 
enumeration  of  certain  persons  after  the  heading  "dependents" 
should  not  be  held  to  place  them  in  the  relationship  of  actual  de- 
pendents ;  such  enumeration  merely  indicating  that  they  must 
prove  themselves  dependents  in  fact,  as  distinguished  from  theoret- 
ical dependents.^''  A  statute  authorizing  compensation  to  actual 
dependents  will  be  liberally  construed  to  allow  compensation  to 
the  dependent  parent  of  a  deceased  workman,  though  he  has  left 
no  surviving  wife  or  child,  and  no  specific  amount  of  compensation 
is  fixed  for  such  a  case.^'^ 

31  Morse  v.  Eoyal  Indemnity  Co.,  1  Cal.  I.  A.  C.  Dec.  53. 

32  Miller  v.  Riverside  Storage  &  Cartage  Co.  (Mich.)  155  N.  W.  4G2. 

33  (Consol.  Laws,  c.  67,  §  16,  subd.  4)  Friscia  v.  Drake  Bros.  Co.,  167  App. 
Div.  496,  153  N.  Y.  Supp.  392. 

3  4  McLean  v.  Moss  Bay  Iron  &  Steel  Co.,  Ltd.  (1910)  2  B.  W.  C.  C.  2S2,  C.  A. 

35  Hammill  v.  Pennsylvania  R.  Co.,  87  n!  J.  Law,  3S8,  94  Atl.  313. 

A  sister-in-law,  with  whom  the  deceased  employe  resided  and  for  whom 
he  made  contributions,  is  not  dependent  upon  him,  she  not  being  included  in 
the  classes  of  relatives  enumerated.  Western  Indemnity  Co.  v.  O'Brien,  2 
Cal.  I.  A.  C.  Dec.  36S. 

3  0  Miller  V.  Public  Service  Ry.  Co.,  84  N.  J.  Law,  174,  So  Atl.  1030. 

3  7  Compensation  may  be  awarded  under  P.  L.  1911,  p.  139,  §  2,  par.  12, 
subd.  1,  to  a  mother  who  is  "actually  dependent"  on  a  deceased  son,  although 
the  son  leaves  no  widow ;  the  object  of  this  section  being  to  award  compensa- 
tion to  actual  dependents.  The  right  to  compensation  of  actual  dependents 
was  fixed  by  the  earlier  words  of  the  statute,  and  it  is  immaterial  that  no 
specific  amount  is  fixed  by  way  of  compensation  to  the  mother,  where  dece- 
dent leaves  no  widow,    A  basis  for  compensation  in  the  case  of  the  mother 


231  PERSONS   ENTITLED  TO   COMPENSATION  §   70 

An  Act  providing-  that,  in  case  the  employe  dies  of  his  injury, 
compensation  shall  be  awarded  to  those  persons  who  were  in  fact 
his  next  of  kin  or  members  of  his  family  at  the  time  of  the  injury, 
and  who  in  fact  were  dependent  upon  him  for  support  at  that  time, 
does  not  authorize  an  award  of  compensation  to  be  made,  for  ex- 
ample, to  persons  who  would  have  been  his  next  of  kin  if  his  sole 
next  of  kin  had  been  dead,  and  who  were  not  in  fact  dependent 
upon  him,  but  might  have  been  dependent  upon  him,  had  it  been 
that  the  next  of  kin  who  was  dependent  upon  him  had  died.  The 
widow  of  a  subcontractor's  employe,  killed  in  the  course  of  his  em- 
ployment, is  entitled  to  compensation  under  the  jMassachusetts 
Act.'« 

alone  is  found  in  the  schedule  in  the  fact  that  25  per  cent,  of  the  vragcs  is 
to  be  awarded  where  there  is  a  widow  alone,  and  50  per  cent,  where  there  is 
a  widow  and  father  or  mother.  While  the  courts  cannot  read  into  the  stat- 
ute words  which  are  not  there,  they  may,  on  legal  principles,  read  into  the 
basis  of  compensation  words  essential  to  the  main  intent,  as  indicated  by  the 
words  "actual  dependents."  Blanz  v.  Erie  R.  Co.,  84  N.  J.  Law,  35,  85  Atl, 
1030.  This  case  cites  Eyston  v.  Studd,  cited  in  Bacon's  Abridgment,  "Stat' 
utes,"  1,  6,  holding  that  a  statute  giving  a  remedy  against  executors  might  be 
extended  by  equitable  construction  to  administrators,  because  they  are  with- 
in the  equity  of  the  statute,  which  case  was  followed  and  applied  in  Hoguet 
V.  Wallace,  28  N.  J.  Law,  523,  and  recently  was  applied  in  State  v.  Alderman, 
81  N.  J.  Law,  549,  79  Atl.  283,  holding  that  a  statute  forbidding  objections 
to  an  indictment  for  defects  apparent  on  its  face,  unless  taken  before  the 
jury  was  sworn,  applied  to  a  case  where  the  defendant  plead  nolo  contendere, 
in  which,  therefore,  no  jury  could  be  sworn. 

The  parents  are  entitled  to  compensation  for  death  of  the  employe,  if  de- 
pendent upon  him,  though  he  left  no  surviving  wife  or  child.  (Consol.  Laws, 
c.  67,  §  16,  subd.  4)  Friscia  v.  Drake  Bros.  Co.,  167  App.  Div.  496,  153  N.  Y. 
Supp.  392;  In  re  Murphy  (Mass.)  113  N.  E.  283.  Where  the  mother  with 
whom  the  employe  lived  and  to  whose  support  he  contributed  was  his  only 
next  of  kin,  the  rest  of  the  family  being  her  sons  and  daughters,  she  was  the 
only  dependent  entitled  to  compensation  for  the  death  of  the  employ^.    Id. 

Where  the  workman  left  surviving  him  a  dependent  mother,  and  brothers 
and  sisters  not  dependent,  the  mother  was  entitled  to  the  entire  compensa- 
tion. ( Wk.  Comp.  xVct  1912.  §  4 ;  Jones  &  A.  Ann.  St.  1913,  par.  5452)  Matecny 
V.  Vierling  Steel  Works,  187  111.  App.  448. 

38  (St.  1911,  c.  751,  pt.  2,  §§  6,  7,  and  pt.  3,  §  17)  In  re  King,  220  Mass.  290, 
107  N.  E.  959. 


§  70  workmen's  compensation  232 

It  is  not  the  policy  of  the  Kansas  Act  to  continue  compensation 
to  a  dependent  minor  after  he  reaches  the  age  of  18  years,  unless 
he  be  physically  and  mentally  incapable  of  earning  wages,  or  to 
award  compensation  to  an  adult  married  son,  who  is  the  head  of  a 
family  living  separate  from  the  family  of  his  mother,  who  from 
her  wages  as  an  employe  has  made  small  contributions  toward  his 
support,  where  he  is  physically  and  mentally  capable  of  earning, 
and  is  actually  earning,  fair  wages.^* 

The  British  Act  recognizes  "the  members  of  the  workman's  fam- 
ily as  were  wholly  or  in  part  dependent,"  and  the  British  cases  il- 
lustrate this  feature  of  the  statute,  recognizing  the  family  as  such, 
while  the  New  Jersey  Act  does  not  recognize  the  family  as  a  unit, 
but  individuals  or  groups  of  individuals,  when  actually  dependent 
in  fact.  To  come  within  the  latter  Act,  the  individuals  named 
therein  must  be  actually  dependent  upon  the  deceased,  rather  than 
upon  a  common  family  fund.*"  In  a  Connecticut  case,  where  the 
deceased  minor  employe  had  been  obtained  by  the  claimant  from 
a  home  for  destitute  children,  under  an  agreement  which  provided 
that  the  home  might  demand  his  surrender  at  any  time,  and  had 
never  legally  adopted  the  deceased,  he  was  held  by  the  Commis- 
sioner not  to  have  been  such  a  member  of  claimant's  family  as  to 
entitle  claimant  to  an  award  as  a  dependent  on  account  of  contribu- 
tions of  wages  made  by  the  deceased.*^ 

§  71.     Partial  dependency 

The  phrase  "actual  dependents"  means  dependents  in  fact 
whether  wholly  or  partially  dependent.  Hence  it  was  no  defense, 
in  proceedings  under  an  Act  using  this  term,  that  petitioner  and  his 
family  were  not  entirely  dependent  on  deceased.*^     Partial  depend- 

3  9  (Wlv,  Comp.  Act,  §  4)  Taylor  v.  Sulzberger  &  Sons  Co.,  9S  Kan.  169,  157 
Pac.  435. 

4  0  Havey  v.  Erie  R.  Co.,  88  N.  J.  Law,  684,  96  Atl.  995, 

41  Weaver  v.  Assawaga  Co.,  1  Conn.  Comp.  Dec.  331. 

42  See  note  42  on  following  page. 


233  PERSONS  ENTITLED  TO   COMPENSATION  §    71 

ency,  giving  a  right  to  compensation,*^  may  exist,  though  the  con- 
tributions be  at  irregular  intervals  and  of  irregular  amounts,  and 
though  the  dependent  have  other  means  of  support,**  and  be  not 

42  Muzik  V.  Erie  R.  Co.,  85  N.  J.  Law,  129,  89  Atl.  248,  Ann.  Cas.  1916A,  140, 
affirmed  in  86  N.  J.  Law,  695,  92  Atl.  1087 ;  Jackson  v.  Erie  R.  Co.,  86  N.  J. 
Law,  550,  91  Atl.  1035. 

The  phrases  "actual  dependent"  and  "who  are  dependent  upon  the  deceas- 
ed," as  used  in  the  New  Jersey  Act,  mean  relatives  in  some  degree  mention- 
ed in  the  Act,  who  were  dependents  in  fact  and  being  wholly  or  to  a  substan- 
tial degree  supported  by  the  deceased  at  the  time  of  his  death.  (P.  L.  1913, 
p.  305,  par.  12)  Hammill  v.  Pennsylvania  R.  Co.,  87  N.  J.  Law,  388,  94  Atl. 
313;  Havey  v.  Erie  R.  Co.,  87  N.  J.  Law,  444,  95  Atl.  124.  The  words  "ac- 
tual dependents"  mean  dependents  in  fact.  The  contrast  in  the  statute  is  be- 
tween those  who  are  actually  dependent  and  those  who  are  not  dependent. 
(P.  L.  1911,  p.  139,  §  2,  par.  12)  Miller  v.  Public  Service  Ry.  Co.,  84  N.  J.  Law, 
174,  85  Atl.  1030. 

In  Belcher  v.  Campo,  1  Conn.  Comp.  Dec.  612,  where  though  the  deceased 
workman's  father  owned  considerable  real  estate  and  chattels  incidental  to 
the  running  of  his  farm,  both  he  and  the  mother  were  unable  to  do  any 
work,  the  farm  being  run  by  the  deceased  son,  and  groceries  and  feed  for  the 
stock  being  bought  by  him,  and  the  father  testified  that  he  depended  upon 
the  son  for  these  necessary  supplies,  which  were  bought  from  the  wages 
earned  by  the  deceased  in  respondent's  employ,  both  mother  and  father  were 
held  to  be  partial  dependents. 

In  a  case  in  which  a  father  sought  compensation  on  account  of  the  death 
of  a  son  who  had  contributed  to  his  father  a  certain  average  sum  weekly,  it 
was  said  that  the  question  was  whether  the  father  "made  a  loss  by  the  death 
of  his  son,  in  consequence  of  there  no  longer  being  a  source  of  assistance  to 
him  from  his  son's  earnings  in  the  work  at  which  he  was  killed,  and  on 
which  source,  from  his  own  inability  to  earn  wages  himself,  he  was  wholly  or 
partially  dependent."    Arrol  &  Co.,  Ltd.,  v.  Kelly,  7  F.  906,  42  S.  C.  L.  695. 

43  It  is  not  necessary  that  the  dependency  be  total  in  order  to  entitle  the 
dependent  to  the  benefit  of  the  statute.  Walz  v.  Holbrook,  170  App.  Div.  6, 
155  N.  Y.  Supp.  703 ;  Tirre  v.  Bush  Terminal  Co.,  172  App.  Div.  386,  158  N. 
Y.  Supp.  883.  Partial  dependency  is  sufiicient  to  entitle  a  claimant  to  com- 
pensation. Rhyner  v.  Hueber  Bldg.  Co.,  171  App.  Div.  56,  156  N.  Y.  Supp.  903. 
That  the  workman's  sister  was  only  partially  dependent  upon  him  did  not 
prevent  her  from  recovering  compensation  for  his  death.  Walz  v.  Holbrook, 
Cabot  &  Rollins  Corp.,  170  App.  Div.  6,  155  N.  Y.  Supp.  703. 

4  4  (Wk.  Comp.  Act,  §  43)  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245. 

Where  a  workman,  who  left  surviving  him  two  sisters  under  eighteen  years 

of  age,  a  married  sister,  and  a  mother,  had  given  his  mother  one-half  of  his- 


§  71  workmen's  compensation  234 

reduced  to  absolute  want.'*^  But  it  exists  only  to  the  extent  that 
the  deceased  workman  contributed  to  the  support  of  the  dependent. 

earnings  for  more  than  ten  years,  which  earnings  she  used  for  support  of 
herself  and  minor  children,  she  was  partially  dependent  on  him,  though  slie 
also  received  some  support  from  her  husband.  Kennerson  v.  Thames  Tow- 
boat  Co.,  89  Conn.  367,  94  Atl.  372,  L.  R.  A.  1916A,  436.  In  Jakubowski  v. 
Brooks,  1  Conn.  Comp.  Dec.  281  (affirmed  by  superior  court  on  appeal),  where 
the  deceased,  a  sister  of  the  claimant,  made  irregular  contributions  to  the 
claimant  whenever  any  emergency  or  particular  need  arose,  though  she  lived 
vv^ith  her  sister's  family  and  paid  no  board,  contributing  in  all  over  $200, 
claimant  was  held  to  be  a  partial  dependent,  even  though  her  husband,  when 
working,  was  able  to  support  her,  and  it  did  not  appear  that  she  would  have 
suffered  want  if  the  contributions  had  not  been  made.  In  Kennedy  v.  Amer- 
ican Brass  Co.,  1  Conn.  Comp.  Dec.  406,  where  it  appeared  that  deceased 
practically  furnished  the  house  rent  for  his  sister,  gave  her  sums  of  money, 
and  purchased  coal  for  her,  though  her  husband  was  earning  $15  per  week, 
it  was  held  that  she  actually  relied  upon  these  contributions  as  a  means  of 
maintaining  the  family  standard  of  living,  and  was  a  partial  dependent.  In 
McNamara  v.  Ives,  1  Conn.  Comp.  Dec.  41,  it  was  held,  where  the  deceased 
employ^  lived  with  his  sister  and  contributed  about  $50  a  year,  besides  pay- 
ing his  board,  and  also  did  work  around  the  home,  that  she  was  a  dependent, 
entitled  to  the  minimum  of  $5  per  week  for  312  weeks.  Where  a  minor  em- 
ploye contributed  approximately  $12  to  $14  per  month  to  a  family  consisting 
of  his  father,  mother,  and  sister,  they  were  partially  dependent  upon  him,  and 
entitled  to  the  minimum  benefit  of  $5  per  week  for  312  weeks,  and  $100  burial 
expenses.  Anderson  v,  American  Straw  Board  Co.,  1  Conn.  Comp.  Dec.  11 
(affirmed  by  superior  court  on  appeal). 

The  plaintiff's  son,  18  years  old,  living  with  her  and  and  her  husband, 
turned  over  to  her  his  wages,  paying  nothing  for  his  board,  room,  or  laundry, 
but  obtaining  from  her  money  for  his  expenditures.  Although  she  was  sup- 
ported by  her  husband,  she  has  required  certain  medical  and  surgical  atten- 
tion, the  expenses  of  which  were  paid  in  part  by  the  deceased,  and  his  wages 
were  always  available  by  her  for  such  attention,  all  of  which  extra  expense 
could  be  met  only  by  using  a  portion  of  his  earnings.  The  court  held  that 
she  was  partly  dependent  upon  the  son,  and  could  recover  under  the  Work- 
men's Compensation  Act  on  account  of  his  death.  Smith  v.  National  Sash  & 
Door  Co.,  96  Kan.  816,  153  Pac.  533. 

Where  the  deceased  workman  was  a  minor  16  years  old,  living  at  the  home 
of  the  claimant,  his  half-brother,  of  whose  family  he  was  a  member,  the  house- 
hold affairs  being  managed  by  the  claimant's  wife,  to  whom  her  husband  and 
decedent  gave  their  entire  weekly  wages,  from  which  the  family,  consisting 

45  Rhyner  v.  Hueber  Bldg.  Co.,  171  App.  Div.  56,  156  N.  Y.  Supp.  903. 


•235  PERSONS   ENTITLED  TO   COMPENSATION  §    71 

Payments  made  for  other  purposes  than  for  support,  such  as  pay- 
ments to  the  dependent  to  be  invested  for  the  joint  benefit  of  both, 
constitute  no  part  of  such  dependency.**'    Although  a  wife  in  Italy 

of  decedent,  the  husband  and  wife,  and  their  two  minor  cliildren,  were  sup- 
ported, claimant  was  partially  dependent  upon  decedent's  wages  for  support. 
(St.  1911,  c.  751,  pt.  2,  §  6)  In  re  Kelley's  Case,  222  Mass.  53S,  111  N.  E.  395 ; 
Dodge  V.  Boston  &  Providence  R.  R.,  154  Mass.  299,  28  N.  E.  243,  13  L.  R.  A. 
318;  Murphy's  Case,  218  Mass.  278,  105  N.  E.  635.  Where  an  employe  con- 
tributtd  ?2  per  week  to  the  support  of  a  child,  who  had  left  his  home  with 
his  wife  when  she  left  him,  the  child  was  a  partial  dependent.  Bentley  v. 
Mass.  Employes  Ins.  Assn.  (1914)  2  Mass.  Wk.  Comp.  Cases,  42  (decision  of 
Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.,  also  by  Sup.  Jud.  Ct.,  217  Mass.  79, 
104  N.  E.  432). 

Where  it  appeared  that  the  widow  resided  in  China,  and  had  at  all  times 
resided  there,  and  had  not  been  living  with  her  husband  for  11  years,  but  had 
been  partially  dependent  on  him,  and  in  receipt  of  contributions  toward  her 
support,  she  was  entitled  to  a  death  benefit  of  three  times  the  average  annual 
contribution.  Ching  Shee  v.  Madera  Sugar  Pine  Co.,  2  Cal.  I.  A.  C.  Dec.  1014. 
Where  a  father  provides  a  home,  food,  and  clothing  for  his  daughter,  who  is 
regularly  employed  and  earning  $35  a  mouth,  and  devoted  her  earnings 
entirely  to  such  personal  expenditures  as  she  pleased,  she  was  a  partial  de- 
pendent to  extent  of  50  per  cent.  Smith  v.  Christopher's  Market,  2  Cal.  I.  A. 
C.  Dec.  536. 

Where  a  Pole  working  in  Scotland  was  killed  after  he  had  worked  for  eight 
months,  in  that  time  having  sent  $1  to  his  wife,  who  was  supported  by  her 
own  work  and  help  from  her  parents,  the  wife  was  partially  dependent. 
Baird  &  Co.,  Ltd.,  v.  Podolska  (190G)  8  F.  438,  Ct.  of  Sess.  Where  a  boy's 
earnings  of  8s.  per  week  were  put  in  the  common  family  fund,  and  his  sup- 
port was  estimated  to  cost  only  5s.  per  week,  there  was  evidence  that  his 
parents  were  partly  dependent  upon  him.  Main  Colliery  Co.,  Ltd.,  v.  Davies 
(1900)  A.  C.  358,  H.  L.,  and  2  W.  C.  C.  108. 

4  6  Mahoney  v.  Yosemite  Valley  R.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  150.  Where  a 
son,  contributing  one-half  of  his  earnings  to  his  family,  consisting  of  a  sister, 
mother,  and  father,  is  killed,  the  dependency  of  the  sister  is  partial.  Irwin 
V.  Globe  Indemnity  Co.  of  N.  Y.,  1  Cal.  I.  A.  C.  Dec.  547. 

The  employe  contributed  all  of  his  earnings  to  his  mother,  who  was  par- 
tially dependent  upon  him  for  support.  Five  other  children  contributed  to 
the  family  fund.  The  father  earned  an  average  weekly  wage  of  ?14.50.  It 
was  held  that  the  mother  was  entitled  to  a  weekly  compensation  equal  to 
one-half  of  decedent's  weekly  contribution.  Devaney  v.  American  Mutual 
Liability  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  233  (decision  of  Com.  of  Arb.). 
The  employe  had  been  separated  from  his  wife  for  a  period  of  18  mouths  prior 
to  the  occurrence  of  the  injury  which  caused  his  death,  and  had  not  during 


72  workmen's  compensation 


236 


has  for  seven  years  been  supported  by  contributions  from  her  hus- 
band in  this  country,  she  will  be  presumed  to  be  only  partially  de- 
pendent upon  him  at  the  time  of  his  death,  one  and  a  half  years 
after  the  seven-year  period,  if  during  the  one  and  a  half  years  he 
has  made  no  remittance  and  she  is  living  with  three  adult  children, 
at  least  two  of  whom  are  presumably  able  to  support  her.*' 

§  72.     Total  dependency 

Compensation  is  awarded  on  the  basis  of  total  dependency,  where 
the  dependents  subsist  entirely  on  the  earnings  of  the  workman,*'^ 

that  period  contributed  to  her  support.  He  lived  with  his  mother  and  con- 
tributed $5  weekly  to  her.  She  was  partially  dependent  on  him ;  another  son 
assisting  to  support  her.  It  was  held  that  the  mother  was  partially  depend- 
ent. Stone  V.  Travelers'  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  715  (decision 
of  Com.  of  Arb.). 

Where  a  father,  mother,  and  grown  son  constitute  a  family,  both  father 
and  son  are  wage-earners,  and  both  contribute  to  the  family  fund,  the  son 
being  considered  as  one  of  the  family,  and  not  as  a  boarder,  the  mother  may 
be  partially  dependent  upon  her  son  for  support.  In  re  Emma  Hoffman,  vol. 
1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  41.  An  unmarried  employ§  maintained  a 
home  for  himself,  his  mother,  who  was  63  years  of  age,  and  an  umnarried 
sister,  24  years  of  age.  The  entire  living  expenses  of  the  family  were  met  by 
the  earnings  of  the  employe  and  a  pension  of  $12  per  month  paid  to  the  mother 
by  the  United  States  government.  The  Commission  held  that  the  mother  and 
sister  were  both  partially  dependent  upon  him  for  support.  Ress  v.  Youngs- 
town  Sheet  &  Tube  Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  194.  But  where 
a  son  who  was  of  full  age  made  his  home  with  his  father  and  mother,  and 
turned  over  a  large  portion  of  his  earnings  to  his  father,  who  made  no  charge 
against  him  for  board,  clothing,  and  lodging,  and  the  father  owned  real 
estate  which  was  listed  for  taxation  at  $12,440,  and  the  mother  owned  real 
estate  listed  for  taxation  at  $4,730,  the  tax  value  in  each  instance  being  not 
more  than  60  per  cent,  of  the  actual  value  of  the  real  estate,  the  same  being 
incumbered  to  the  extent  of  $6,000,  the  father  being  66  years  of  age  and  not  a 
wage-earner,  and  the  mother  being  59  years  of  age  and  not  a  wage-earner, 
the  Commission  held  that  neither  the  father  nor  the  mother  were  either 
wholly  or  partially  dependent  on  the  grown  son.  In  re  Joseph  Hora,  vol.  1, 
No.  7,  Bui.  Ohio  Indus.  Com.  p.  173. 

47  Claudio  V.  California  Street  Cable  Ry.  Co.,  3  Cal.  I.  A.  C.  Dec.  7. 

4  8  w^here  an  invalid  for  25  years  had  lived  with  and  was  supported  by  her 
sister,  "everything    *     *     •     received  in  the  way  of  food,  lodging,  clothing. 


237  PERSONS   ENTITLED  TO   COMPENSATION  §    72 

even  though,  but  for  services  performed  for  him,  they  would  be 
able  to  support  themselves.*®     Persons  are  not  precluded  from  be- 

medicines,  payment  of  doctor's  bills,  and  contributions  of  cash  coming  from 
her  sister,"  she  was  wholly  dependent  on  her  sister  for  support.  Buckley  v. 
American  Mutual  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  186  (decision 
of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.,  also  by  Sup.  Jud.  Ct.,  218  Mass. 
354,  105  N.  E.  979,  Ann.  Cas.  1916B,  474).  The  workman  contributed  all  of 
his  earnings  to  his  mother,  who  was  custodian  for  the  benefit  of  his  invalid 
father,  motlier,  and  two  minor  brothers.  An  unprofitable  store  had  been 
started,  in  connection  with  the  tenement  in  which  the  family  lived,  about  six 
weeks  before  the  workman's  death.  It  was  held  that  the  father,  mother,  and 
two  minor  brothers  were  wholly  dependent  for  support.  De  Pasquale  v.  Em- 
ployers' Liability  Assur.  Corp.,  Ltd.,  2  Mass.  Wk,  Comp.  Cases,  497  (decision 
of  Com.  of  Arb.,  afiirmed  by  Indus.  Ace.  Bd.). 

The  widow  and  minor  children  of  a  deceased  workman,  with  whom  he 
lived,  and  whom  he  supported  at  the  time  of  his  death,  and  who  had  at  the 
time  no  property  or  income  of  their  own,  were  wholly  dependent  on  him.  In 
re  Elida  Baird,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  28.  A  coal  miner  19 
years  of  age  lived  with  his  invalid  father  and  stepmother,  and  with  five 
half  brothers  and  sisters,  from  2  to  13  years  old.  The  stepmother  was  not 
a  wage-earner  and  the  whole  family  subsisted  on  his  earnings.  The  Commis- 
sion held  that  the  entire  family  was  wholly  dependent  on  him.  In  re  Lewis 
Spencer,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  179.  Where  the  deceased 
employe  was  unmarried,  and  lived  with  his  mother,  and  supported  her,  she 
was  wholly  dependent  upon  him.  In  re  Bridget  McAuliffe,  vol.  1,  No.  7,  Bui. 
Ohio  Indus.  Com.  p.  144.  A  workman's  widow,  with  whom  he  lived  prior  to 
his  decease,  who  had  no  separate  estate  and  no  income  of  her  own,  but  sub- 
sisted entirely  upon  the  earnings  of  her  husband,  was  wholly  dependent. 
In  re  Anna  King,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  37.  Where  a  daugh- 
ter 16  years  of  age  lived  separate  from  her  father,  her  mother  being  dead, 

*»  A  strong,  healthy  woman,  earning,  prior  to  her  mother's  death,  $9  a 
week  in  a  factory,  relinquished  her  position  and  remained  at  home  to  take 
care  of  her  father  without  any  agreement  as  to  remuneration.  At  the  time 
of  the  hearing  she  was  able  to  earn  good  wages  as  a  housekeeper  and  consid- 
ered herself  wholly  dependent  upon  her  father  for  support.  It  was  held  that 
she  was  wholly  dependent  on  her  father.  Herrick  v.  Employers'  Liability 
Assurance  Co.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  122  (decision  of  Com.  of  Arb., 
afiirmed  217  Mass.  Ill,  104  N.  E.  432,  4  N.  C.  C.  A.  564). 

Where  a  girl  able  to  earn  wages,  and  having  previously  done  so,  was  keep- 
ing house  for  her  father,  receiving  therefor  her  board,  lodging,  and  clothes, 
but  no  money  compensation,  she  was  dependent  upon  her  father.  Moyes  v. 
Dixon,  Ltd.  (1905)  7  F.  386,  Ct.  of  Sess.  (Act  of  1897). 


§  72  workmen's  compensation  238 

ing  totally  dependent  by  the  fact  that  temporary  gratuitous  serv- 
ices have  been  rendered  for  or  occasional  money  sent  to  them  by 
persons  other  than  the  workman, •'■''  that  they  hold  small  savings  ac- 
counts,^^  that  they  have  been  supported  in  part  by  the  workman's 

and  her  father  paid  her  board  and  furnished  her  money  to  buy  necessary 
clothing,  she  was  wholly  dependent  upon  her  father  for  support.  In  re  Maude 
M.  Hughes,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  148.  Where  the  employe 
was  survived  by  a  widow  and  son  35  years  old,  the  widow  was  held  to  be 
wholly  dependent.  In  re  Frances  Williams,  vol.  1,  No.  7,  Bui.  Ohio  Indus. 
Com.  p.  31. 

Where  it  is  shown  that  all  the  support  of  two  minor  children  came  from 
their  father,  and  that  remittances  therefor  from  him  were  regular,  and  were 
relied  upon,  such  evidence  establishes  the  fact  of  total  dependency.  Holleron 
V.  Hill,  2  Cal.  I.  A.  C.  Dec.  289. 

\Mhere  a  father,  who  was  tenant  of  and  owned  the  furniture  of  the  house 
in  which  he  lived,  gave  his  weekly  earnings  of  ISs.  a  week  to  his  daughter, 
with  which,  added  to  the  income  from  a  lodger  whom  the  daughter  took  care 
of,  she  managed  the  house,  the  daughter  was  wholly  dependent  upon  her  fa- 
ther.   Marsh  v.  Boden  (1905)  7  W.  C.  C.  110,  0.  A.  (Act  of  1897). 

50  (Gen.  St.  1913,  §  8208)  State  ex  rel.  Splady  v.  District  Court,  128  Minn. 
338,  151  N.  W.  123. 

Where  a  deceased  workman's  mother,  according  to  an  arrangement  made, 
was  to  live  with  him  and  be  supported  by  him,  a  conclusion  of  the  Commis- 
sioner that  she  was  totally  dependent  upon  him  was  authorized,  though  she 
was  temporarily  living  with  another  son.  Kennerson  v.  Thames  Towboat  Co., 
89  Conn.  367,  91  Atl.  372,  L.  R.  A.  1916A,  436. 

That  the  deceased  employe's  aunt  occasionally  sent  various  sums  to  his 
mother,  which  remittances  were  mere  gratuities,  and  that  one  of  his  sisters, 
a  member  of  the  family,  earned  six  or  seven  cents  a  day,  no  part  of  which 
was  paid  to  the  mother  and  another  sister,  the  alleged  dependents,  did  not 
preclude  them  from  being  wholly  dependent  on  his  earnings.  Petrozino  v. 
American  Mutual  Liability  Co.,  219  Mass.  498,  107  N.  E.  370. 

5 1  Where  a  daughter,  for  three  years  before  her  father's  death,  has  had  no 
income,  except  money  allowed  her  by  her  father  and  the  compensation  for  two 
weeks,  which  is  so  small  that  it  may  be  disregarded,  and  is  too  ill  to  work, 
the  fact  that  she  had  $100  saved  from  the  money  given  her  by  her  father  will 
not  prevent  a  finding  that  she  was  wholly  dependent  on  her  father  at  the  time 
of  his  decease.    (St.  1911,  c.  751)  In  re  Carter,  221  Mass.  105,  108  N.  E.  911. 

Where  a  mother  is  living  with  her  son,  and  without  resources  except  a  few 
hundred  dollars  kept  for  an  emergency,  a  portion  of  which  she  advances  for 
household   expenses  ia  a   financial  exigency   expecting  to  have  the  amount 


239  PERSONS   ENTITLED  TO   COMPENSATION  §    73 

income  other  than  his  wages, ^^  or  that  money  furnished  for  their 
support  by  the  workman  was  not  paid  directly  to  them.^^ 

§  73.     Alien  dependents 

As  a  rule,  the  fact  that  a  dependent  is  an  alien  living  in  a  foreign 
country  does  not,  of  itself,  bar  compensation.^^  But  "dependents," 
as  used  in  the  Washington  Act,  does  not  apply  to  any  nonresident 
dependents,  other  than  a  father  or  mother.^^  The  right  of  an  alien 
nonresident  next  of  kin  to  damages  is  limited  by  the  New  Jersey 

repaid  later,  slie  is  wliolly  dependent  on  the  son  for  support.    Bennett  v.  San 
Buenaventura  Wharf  Co.,  1  Cal.  I.  A.  C.  Dec.  200. 

52  A  widowed  mother,  without  means,  who  is  supported  by  her  son,  partly 
by  the  wages  of  his  employment  and  partly  by  the  yield  of  his  land,  is  wholly 
dependent  upon  her  son  for  support,  within  the  meaning  of  the  Minnesota 
Compensation  Act  (Gen.  St.  1913,  §  8208,  subd.  2)  State  ex  rel.  Crookston 
Lumber  Co.  v.  District  Court,  131  Minn.  27,  154  N.  W,  509, 

53  That  the  deceased  workman's  sister  did  not  receive  support  directly  from 
deceased,  but  indirectly  through  money  contributed  by  him  to  the  support  of 
the  family,  did  not  preclude  her  from  recovering  compensation  for  his  death. 
Walz  V.  Holbrook,  Cabot  &  Rollins  Corp.,  170  App.  Div.  6,  155  N,  Y.  Supp.  703. 

5  4  Compensation  was  allowed  the  mother  and  sister  of  a  deceased  workman, 
who  were  residents  of  Italy.  Petroziuo  v.  American  Mut.  Liability  Co. 
(Caliendo's  Case),  219  Mass.  498,  107  N.  E.  370. 

The  wife  and  infant  son  of  a  deceased  workman,  residing  in  Austria- 
Hungary,  were  entitled  to  receive  compensation  under  the  Ohio  Act  for  his 
death.    Vujic  v.  Youngstown  Sheet  &  Tube  Co.  (D.  C.)  220  Fed.  390. 

If  otherwise  entitled,  the  fact  that  the  widow  of  an  alien  workman  lived 
in  a  foreign  country  at  the  time  of  both  accident  and  death  does  not  bar  com- 
pensation.   Krzus  v.  Crow's  Nest  Pass  Coal  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  271. 

Aliens  are  included  within  the  meaning  and  scope  of  the  Compensation  Act, 
and,  if  actually  dependent  upon  one  receiving  his  death  by  reason  of  an  acci- 
dental injury  arising  out  of  and  in  the  course  of  the  employment,  thoy  are 
entitled  to  compensation  for  same.  Bishop  v.  United  States  Crushed  Stone 
Co.,  Bulletin  No.  1,  111.,  p.  201.  An  alien  nonresident,  beneficiary  of  a  person 
who  met  death  because  of  an  injury  that  arose  out  of  and  from  the  course  of 
his  employment,  under  the  Workmen's  Compensation  Act,  is  entitled  to  com- 
pensation the  same  as  if  she  were  an  actual  citizen  and  resided  in  the  state  of 
Illinois.    Bishop  v.  Iroquois  Iron  Co.,  Bulletin  No.  1,  111.,  p.  108. 

5  5  (Wk.  Comp.  Act  Wash.  §  3)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  5. 


§  73  workmen's  compensation  240 

Act  of  1911  to  the  compensation  which  it  provides,  and  as  it  ex- 
pressly states  that  compensation  under  the  schedule  established  by 
the  Act  shall  not  apply  to  nonresident  alien  dependents,  the  right 
of  nonresident  next  of  kin  under  the  Death  Act  is  taken  away,  and 
therefore  there  is  no  statutory  remedy  to  such  persons.^® 

The  title  of  the  Illinois  Act  of  1913  is  sufficient  to  cover  a  provi- 
sion authorizing  payment  of  compensation  to  nonresident  alien  de- 
pendents.^^ 

Under  the  Connecticut  Act,  as  amended,  compensation  is  award- 
ed to  alien  dependents  in  one-half  the  amounts  specified  for  other 
dependents,  unless  such  alien  dependents  are  residents  of  the  Unit- 
ed States,  or  its  dependencies,  or  Canada,  such  alienage  to  be  de- 
termined as  of  the  date  of  the  injury.^*  This  amendment  does  not 
conflict  with  the  treaty  with  Italy.^^     It  has  been  held  that  it  is 

5  6  Gregutis  v.  Waclark  Wire  Works  (N.  J.)  91  Atl.  98. 

5  7  Victor  Ctiemical  Works  v.  Industrial  Board  of  Illinois  (111.)  113  N.  E. 
173. 

5  8  Wk.  Comp.  Act.  pt.  B,  §  10,  as  amended  by  Pub,  Acts  1915,  c.  288,  §  6.  In 
Alvarez  v.  Eisenmann,  1  Conn.  Comp.  Dec.  357,  the  totally  dependent  widow- 
being  a  resident  of  Italy,  she  was  awarded  one-half  the  regular  compensation 
due  a  resident  dependent.  In  Pansoda  v.  Bridgeport  Hydraulic  Co.,  1  Conn. 
Comp.  Dec.  118,  a  workman's  totally  dependent  mother  residing  in  Spain 
was  awarded  one-half  the  minimum  compensation  for  death  payable  to  a  total 
dependent.  In  Biero  v.  New  Haven  Hotel  Co.,  1  Conn.  Comp.  Dec.  52,  where 
the  deceased  workman's  father  was  a  resident  dependent,  but  his  mother  was 
an  alien  nonresident  dependent,  they  were  awarded  ?2.50  and  $1.25  per 
week,  respectively ;  the  motlier's  compensation  being  reduced  one-half  be- 
cause she  was  not  a  resident  of  this  country.  In  laniiace  v.  Jobson-Gifford 
Co.,  1  Conn.  Comp.  Dec.  118,  where  a  workman's  widow  was  a  nonresident 
alien  dependent  at  the  time  of  the  injury,  but  later  came  to  this  country 
to  live,  she  was  awarded  one-half  regular  compensation  until  she  came  to 
this  country,  and  full  benefit  thereafter. 

5  9  In  Fabbian  v.  C.  W.  Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  305,  it  was 
held  by  Commissioner  Beers  that  the  provision  of  the  Connecticut  Act  that 
compensation  to  nonresident  alien  dependents  shall  be  one-half  the  amount 
payable  if  they  were  residents  of  this  country^  is  not  invalid  as  conflicting 
with  existing  treaties  between  Italy  and  the  United  States.  In  Viotti  v.  De 
Bisschop,  1  Conn.  Comp.  Dec.  195,  a  dependent  widow  residing  in  Italy  was 


241  PERSONS   ENTITLED  TO   COMPENSATION  §    74 

not  declaratory  of  the  prior  law,  and  that  for  an  injury  occurring 
before  the  passage  of  the  amendment  the  matter  of  alienage  need 
not  be  determined  as  of  the  time  of  the  injury,  but  a  nonresident 
alien  dependent  may  have  his  compensation  payments  increased 
to  full  amount  upon  taking  up  residence  in  this  country  after  the 
injury.*" 

§  74.     What  children  may  be  dependents 

Children  entitled  to  compensation  as  dependents  include  step- 
children,^^ illegitimate  children,''^  especially  where  they  lived  with 
the  workman  and  were  actually  cared  for  and  supported  by  him 
prior  to  his  death,  and  had  a  right  to  expect  a  continuation  of  that 
support,^^  children  adopted  by  the  workman,^*  though  not  children 

awarded  one-half  the  amount  of  death  benefit  payable  to  dependents  residing 
in  the  United  States ;  the  commissioner  holding  it  was  not  for  him  to  decide 
whether  this  provision  couSicted  with  any  treaty  rights  between  Italy  and 
the  United  States. 

6  0  Ostrowski  v.  Stanley  Iron  Works,  1  Conn.  Comp.  Dec.  554. 

61  Dependent  stepchildren,  who  have  been  supported  by  the  deceased  work- 
man, are  included  within  the  word  "children"  in  this  act.  (P.  L.  1911,  p. 
134)  Newark  Paving  Co.  v.  Klotz,  85  N.  J.  Law,  432,  91  Atl.  91. 

The  word  "child,"  as  used  in  the  Washington  Act,  includes  a  stepchild. 
(Wk.  Comp.  Act  Wash.  &  3)  Rulings  W&sh.  Indus.  Ins.  Com.  1915,  p.  6. 

6  2  Where  a  workman  evaded  the  payment  of  an  aliment  decree  rendered 
against  him  in  favor  of  the  mother  of  his  illegitimate  child,  the  only  money 
obtained  from  him  being  £2  garnisheed  from  his  employers,  and  was  then 
killed  by  accident,  the  child  was  held  to  be  partially  dependent  upon  him. 
Bowhill  Coal  Co.,  Ltd.,  v.  Neish  (1910)  2  B.  W.  C.  C.  253,  Ct.  of  Sess. 

6  3  Roberts  v.  Whaley  (Mich.)  15S  N.  W.  209. 

Where  a  woman  was  living  with  the  workman  in  an  illicit  relationship, 
the  minor  children  of  the  pair,  living  with  the  father  and  dependent  upon 
him  for  support,  were  "dependents."  Sexton  v.  Massachusetts  Bonding  & 
Insurance  Co.,  1  Cal.  I.  A.  C.  Dec.  48.  Where  the  deceased  workman  leaves 
an  illegitimate  child,  who  was  partially  dependent  upon  him  and  received  a 
certain  portion  of  his  earnings,  that  same  portion  of  the  death  benefits  will 

6  4  See  note  64  on  following  page. 

HON.COMP.— 16 


§  74  workmen's  compensation  242 

adopted  by  his  widow  after  his  death,*'^  and  also  include  post- 
humous children,  legitimate  or  illegitimate.®*'  A  child  adopted  by 
a  third  person  is  not  entitled  to  compensation  by  reason  of  the 
death  of  the  natural  parent.®''  A  daughter  over  eighteen  years  of 
age  is  not  a  dependent,  under  the  Washington  act.®*  But  in  Min- 
nesota a  daughter  of  thirty,  not  physically  or  mentally  incapaci- 

be  awarded  to  the  child.  Mitchell  v.  Fairchild-Gilmore-Wilton  Co.,  1  Cal. 
I.  A.  C.  Dec.  71. 

At  the  time  of  his  death  a  workman  who  was  killed  in  the  course  of  his 
employment  was  living  with  and  supporting  a  woman  as  his  common-law 
wife  and  a  child  which  had  been  born  to  them.  It  was  held  that  the  child 
was  wholly  dependent  upon  the  workman  for  support  at  the  time  of  his 
death.    In  re  Mary  A.  Gloyd,  vol.  1,  No.  7,  Bui.  Ohio   Indus.  Com.  p.  79. 

64  "  'Dependents'  means  such  members  of  the  workman's  family  as  were 
wholly  or  in  part  dependent  upon  the  workman  at  the  time  of  the  accident. 
And  'members  of  a  family'  for  the  purpose  of  this  Act  means  only  widow  or 
husband,  as  the  case  may  be,  and  children ;  or  if  no  widow,  husband  or  chil- 
dren, then  parents  and  grandparents ;  or  if  no  parents  or  grandparents,  then 
grandchildren ;  or  if  no  grandchildren,  then  brothers  and  sisters.  In  the 
meaning  of  this  section  parents  include  stepparents,  children  Include  step- 
children, and  grandchildren  include  stepgrandchildren,  and  brothers  and  sis- 
ters include  stepbrothers  and  stepsisters,  and  children  and  parents  include 
that  relation  by  legal  adoption."  (Laws  1911,  c.  218,  §  9)  Smith  v.  National 
Sash  &  Door  Co.,  96  Kan.  816,  153  Pac.  533. 

65  State  ex  rel.  Varchmin  v.  District  Court  of  Ramsey  County  (Minn.)  158 
N.  W.  250. 

66  A  child  which  was  born  after  its  father  had  been  killed  by  accident  is 
entitled  to  compensation  as  his  dependent.  Williams  v.  Ocean  Coal  Co.,  Ltd. 
(1908)  9  W.  C.  C.  44,  C.  A.  (Act  of  1897).  Where  a  workman  acknowledged 
the  paternity  of  an  illegitimate  child,  and  made  plans  to  marry  its  mother, 
but  was  killed  by  accident  before  he  had  done  so,  and  some  months  before 
the  birth  of  the  child,  the  child  was  a  dependent  of  his.  Schofield  v.  Orrell 
Colliery  Co.,  Ltd.  (1910)  2  B.  W.  C.  C.  294,  H.  L.,  and  301,  C.  A. 

67  (Wk.  Comp.  Act  Wash.  §  5)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  16. 
The  illegitimate  child,  whose  mother  was  a  farm  servant,  who  promised  a 

small  sum  semiyearly  for  its  support  to  persons  who  adopted  it  without  con- 
ditions, was  not  a  dependent.  Eriggs  v.  Mitchell  (1911)  4  B.  W.  C.  C.  400,  Ct. 
of  Sess. 

6  8  (Wk.  Comp.  Act  Wash.  §  3)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  5. 


243  PERSONS  ENTITLED  TO   COMPENSATION  §    75 

tated,  and  yet  actually  deriving  her  support  from  her  father,  is  en- 
titled to  the  benefits  of  the  Compensation  Act  as  a  partial  depend- 
ent.*'^ 

§  75.     Illegal  and  divorced  v^ives — marriage 

Compensation  as  a  dependent  may  usually  be  recovered  by  the 
innocent  victim  of  a  bigamous  marriage/"  and  by  a  common-law 
wife,  if  the  common-law  marriage  was  legal,^^  but  not  by  a  woman 

6  9  (Laws  1913,  c.  467,  §  14  [Geu.  St.  1913,  §  8208],  as  amended  by  Laws 
1915,  c.  209,  §  5).  State  ex  rel,  Maryland  Casualty  Co.  v.  District  Court 
(Minn.)  158  N.  W.  798. 

7  0  Where  a  woman  is  living  with  her  reputed  husband  at  the  time  of  his 
death  as,  and  believing  herself  to  be,  his  lawful  wife,  in  consequence  of  the 
performance  of  the  usual  marriage  ceremony  prescribed  by  California  law, 
being  ignorant  of  the  performance  of  a  prior  ceremony  uniting  her  supposed 
husband  with  another,  and  she  has  been  supported  by  him  up  to  his  death, 
she  is  a  member  of  his  family,  wholly  dependent  upon  him.  Rossi  v.  Stand- 
ard Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  307. 

Where  a  Welshman  left  his  wife  in  1896  and  came  to  America,  and  in 
1900  contracted  a  bigamous  marriage  with  a  woman,  with  whom  he  lived  and 
whom  he  supported  until  his  death,  she  having  no  knowledge  of  his  former 
marriage,  she  was  dependent  upon  him  for  support.  In  re  Elizabeth  A. 
Jones,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  187. 

71  A  common-law  wife  is  entitled  to  compensation.  In  re  Mary  A.  Gloyd, 
vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com,  p.  79. 

Where  applicant  claimed  as  widow  of  deceased,  and  it  appeared  that  no 
marriage  ceremony  was  performed  or  marriage  license  issued,  but  that  de- 
ceased and  applicant  had  agreed  to  live  together  as  husband  and  wife  in 
Ohio  some  years  before,  and  had  from  that  time  on  so  lived  together,  and 
had  represented  themselves  to  others  at  all  times  as  husband  and  wife,  and 
that  common-law  marriages  so  entered  into  were  valid  in  Ohio  at  the  time 
this  relation  was  there  entered  into,  the  Commission  held  that  applicant  was 
entitled  to  a  death  benefit  as  widow  of  deceased.  Hill  v.  Fuller  &  Co.,  1 
Cal.  I.  A.  C.  Dee.  155. 

Where  the  only  evidence  that  a  claimant  residing  in  Italy  was  a  wife  of 
the  workman  was  the  statement  of  a  parish  priest  that  the  parties  had  "con- 
tracted matrimony,"  but  the  claim  itself  alleged  the  claimant  as  a  common- 
law  vdfe,  whereas  a  civil  marriage  is  necessary  in  Italy,  it  was  held  claimant 
was  not  the  legal  wife  of  the  workman,  and  hence  not  entitled  to  compen- 
sation. Angelucci  v.  H.  S.  Kerbaugh,  Inc.,  The  Bulletin,  N.  Y.,  vol.  1,  No. 
12,  p.  16. 


§  75  workmen's  compensation  244 

living  in  an  illicit  relationship  with  the  workman,''^  nor  by  a  wife 
divorced  from  the  deceased  workman,  and  for  whose  support  he 
was  obligated  to  pay  a  certain  sum  monthly,  but  who  had  received 
no  such  payments  up  to  the  time  of  his  death. ^^  It  has  been  held 
in  Alassachusetts  that  an  alleged  marriage  whi?h  was  not  legally 
solemnized  did  not  entitle  the  woman  to  recover  compensation  as 
the  dependent  of  her  supposed  husband,  though  she  honestly  be- 
lieved that  she  was  contracting  a  legal  marriage.'^*  But  where  a 
Wisconsin  city  was  situated  part  in  one  county  and  part  in  an- 
other, and  the  workman  and  his  widow,  without  any  intention  to 
circumvent  the  law  requiring  the  procurement  of  a  license  in  the 
county  of  their  residence,  obtained  the  license  in  the  other  county 
than  that  in  which  they  lived,  it  was  held  that  the  marriage  was 
valid,  and  that  the  widow  was  entitled  to  compensation. ^°     The 

7  2  Sexton  V.  Mass.  Bonding  &  Ins.  Co.,  1  Cal.  I.  A.  C.  Dec.  48. 

Where  a  woman  cohabits  with  a  man  for  a  long  period  of  years,  and  is 
the  mother  of  a  family  of  children  by  him,  but  is  not  his  wife,  but  the  wife 
of  a  man  who  has  previously  deserted  her,  she  is  not  a  "member  of  the 
family"  of  the  man  she  is  living  with,  although  she  is  in  fact  supported  by 
and  dependent  upon  him,  and  actually  living  with  him  as  the  mother  of  his 
children  and  member  of  his  household.  (\Vk.  Comp.  Act,  §  19  [c])  Pollock 
V,  Wagner  Leather  Co.,  3  Cal.  I.  A,  C.  Dec.  37. 

A  woman  living  with  the  workman  as  though  she  were  Ms  wife  and  de- 
pendent on  him  for  support,  but  not  legally  married  to  him.  her  marriage  to 
him  being  illegal  because  he  has  a  wife  of  whose  existence  she  does  not  know, 
is  not  entitled  to  compensation  under  subsection  4  of  section  2394 — 10,  Stats., 
providing  that  "no  person  shall  be  considered  a  dependent  unless  a  member 
of  the  family  of  the  deceased  employ§,  or  one  who  bears  to  him  the  relation 
of  husband  or  widow,  or  lineal  descendant,  or  ancestor,  or  brother  or  sister." 
Armstrong  v.  Indus.  Com,  of  Wis.,  161  Wis.  530,  154  N.  W.  844. 

7  3  Mitchell  V.  Crichton,  2  Cal.  I.  A.  C.  Dec.  1005. 

7  4  One  claiming  to  be  the  widow  of  the  employe  entered  into  a  ceremony  of 
marriage  with  him  in  good  faith.  It  appeared,  however,  that  the  alleged 
marriage  was  not  legal,  and  that  the  person  who  performed  same  was  not 
authorized  to  solemnize  marriages.  It  was  held  that  claimant  was  not  a  de- 
pendent. Gron  V.  Mass.  Employes'  Insur.  Ass'n,  2  Mass.  Wk.  Comp.  Cases, 
736  (decision  of  Com.  of  Arb.). 

75  Reed  V.  Rothe,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  33. 


245  PERSONS   ENTITLED  TO   COMPENSATION  §    T6 

widow  of  a  Japanese  workman,  married  by  proxy,  is  not  considered 
a  dependent  under  the  Washington  act.^^ 

§  76.     Nonsupport  and  desertion 

As  a  general  rule,  it  does  not  prevent  the  members  of  a  work- 
man's family  from  being  dependent  on  him  for  support  that  at  the 
time  of  his  death  he  was  unable  or  refused  to  support  them,'^^  or 
had  deserted  them,^^  especially  where  there  was  a  reasonable  ex- 

7  6  (Wk.  Comp.  Act  Wash.  §  3)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  5. 

7T  Where  a  fisherman  commonly  sent  money  home  to  his  father,  but  was  so 
poorly  paid  during  two  shorter  voyages  that  he  was  unable  to  send  any  home, 
and  was  drowned  on  the  second  voyage,  the  father  was  partially  dependent. 
Robertson  v.  Hall  Bros.  Steamship  Co.  (1910)  3  B.  W.  C.  C.  368,  C.  A.  Where 
a  workman  who  was  drowned  had  previously  often  sent  money  home  to  help 
support  his  parents  and  sisters,  but  had  not  sent  any  money  home  on  this 
particular  voyage,  the  family  were  partially  dependent  upon  him.  Turner  v. 
Miller  &  Richards  (1910)  3  B.  W.  C.  C.  305,  C.  A.  A  widow,  who  lived  apart 
from  her  husband  and  received  not  over  $5  a  year  from  him,  being  supported 
by  the  help  of  relatives,  the  small  wages  of  a  child,  and  occasional  work  she 
could  do,  was  totally  dependent.  Cunningham  v.  McGregor  (1901)  3  F.  775, 
Ct.  of  Sess.  Where  a  husband  who  left  his  wife  to  find  work  obtained  em- 
ployment after  two  months,  but  was  killed  after  working  a  week  and  before 
he  had  given  his  wife  any  money,  the  wife  and  a  posthumous  child  were 
entitled  to  compensation  as  partly  dependent.  Queen  v.  Clarke  (1900)  2  Ir. 
R.  135,  C.  A.  (Act  of  1897).  Where  a  workman's  wife  had  been  in  an  insane 
asylum  for  four  months  previous  to  his  death  by  accident,  and  he  was  legally 
responsible  for  her  maintenance  there,  although  he  did  not  pay,  she  was  a 
dependent.    Kelly  v.  Hopkins  (1908)  2  Ir.  R.  84,  C.  A. 

In  Jakubowski  v.  Brooks,  1  Conn.  Comp.  Dec.  281  (affirmed  by  superior 
court  on  appeal),  it  was  held  that  the  fact  that  no  contributions  were  made 
for  a  period  of  three  months  before  the  injury,  though  made  at  irregular  in- 
tervals during  the  three  years  previous,  did  not  terminate  the  dependency. 

Parents  not  dependents. — Where  a  workman's  father  was  in  the  workhouse 
at  the  time  of  the  workman's  death  by  accident,  the  father  was  not  a  depend- 
ent. Rees  V.  Penrikyber  Navigation  Colliery  Co.,  Ltd.  (1903)  5  W.  C.  C.  117, 
C.  A.  (Act  of  1897).  A  woman  who,  at  the  time  her  son  died,  was  being 
kept  in  an  inebriate  reformatory,  and  who  had  been  in  prison  for  the  previous 
four  years,  all  but  ten  months,  during  which  time  the  deceased  son  supported 
her,  was  not  a  dependent.  Addie  &  Sons'  Collieries,  Ltd.,  v.  Trainer  (1905) 
7  F.  115,  Ct.  of  Sess.     (Act  of  1S97). 

7  8  Where  a  deceased  employe,  survived  by  a  widow  and  minor  child  20 
months  old,  had  deserted  them  some  months  prior  to  his  death  by  accident, 


§  76  workmen's  compensation  246 

pectation  that  he  would  return ;  ^^  but  there  appear  to  be  excep- 
tions to  this  rule,  as  where  a  deserted  wife  has  long  been  separated 
from  her  husband,  the  deceased  workman,  and  has  supported  her- 
self or  secured  support  otherwise  than  from  him,  and  had  no  rea- 
sonable expectation  that  he  would  soon  return  and  support  her.^** 

without  any  fault  on  the  part  of  his  wife,  and  had  since  that  time  contributed 
nothing  to  their  support,  they  were  both  nevertheless  wholly  dependent  upon 
Mm  for  support.  In  re  Laura  Shaffer,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com. 
p.  7. 

A  widow  was  dependent  on  her  husband's  support,  even  though  he  had  de- 
serted her  three  years  before,  and  had  since  given  her  no  money  or  support 
of  any  kind,  where  she  was  provided  for  by  her  mother  and  friendly  charity 
during  the  three  years.  Sneddon  v.  Addie  &  Sons'  Collieries,  Ltd.  (1904)  6  F. 
992   (Act  of  1897). 

7  9  Where  a  workman,  after  deserting  his  wife,  no  longer  supported  her,  but 
at  the  time  of  his  death  by  accident  she  was  daily  expecting  return,  there 
was  evidence  that  she  was  dependent.  Coulthard  v.  Consett  Iron  Co.  (1906) 
8  W.  C.  C.  87,  C.  A.  (Act  of  1S97).  Wlhere  a  worlvman  left  his  wife  to  look 
for  work,  and  was  not  heard  from  for  two  years,  although  she  expected  his 
return,  this  was  not  sufficient  evidence  to  rebut  the  legal  presumption  of  de- 
pendency. Stanland  v.  Northeastern  Steel  Co.,  Ltd.  [1907]  2  K.  B.  425,  C.  A. 
(Act  of  1S97).  Where,  upon  being  left  by  her  husband,  who  went  in  search 
of  employment,  a  widow  supported  herself  by  working  as  a  domestic,  and, 
although  receiving  no  support  from  him,  she  met  him  at  times,  and  he  was 
killed  by  accident  two  years  later,  a  posthumous  child  being  born  after  his 
death,  the  legal  presumption  of  dependency  was  not  sufficiently  rebutted. 
Williams  v.  Ocean  Coal  Co.,  Ltd.  (190S)  9  W.  C.  C.  44,  C.  A.  (Act  of  1897). 

Failure  of  a  husband  in  California  to  remit  contributions  during  his  im- 
prisonment for  one  year  and  during  the  succeeding  six  months  is  not  incon- 
sistent with  a  total  dependency  in  fact  of  his  nonresident  wife,  where  he  had 
previously  remitted  to  her  sums  sufficient  for  her  support  and  there  is  no 
affirmative  evidence  of  his  intent  during  the  period  of  nonremittance  to  sever 
family  relations.  Claudio  v.  California  Street  Cable  Ry.  Co.,  3  Cal.  I.  A.  C. 
Dec.  7. 

so  "Actual  dependents"  mean  dependents  in  fact,  and  do  not  include  a  wife 
whom  the  deceased  employ^  had  deserted  at  the  time  of  his  death,  and  who 
for  more  than  six  years  had  supported  herself  without  his  assistance  or  even 
knowledge  of  his  whereabouts.  (P.  L.  1911,  p.  139,  §  2,  par.  12)  Batista  v.  West 
Jersey  &  S.  R.  Co.  (N.  J.)  88  Atl.  954,  following  Miller  v.  Public  Service  R. 
Co.,  84  N.  J.  Law,  174,  85  Atl.  1030. 

Wlhere  a  deserted  wife  was  not  living  with  her  husband  at  the  time  of  his 


247  PERSONS  ENTITLED  TO   COMPENSATION  §    76 

Where  the  wife  has  deserted  her  husband  and  supported  herself, 
neither  she  nor,  ordinarily,  children  whom  she  has  taken  with  her 
and  supported,  can  recover  as  dependents.^^     This  is  particularly 

death,  her  dependency  upon  him  was  a  question  of  fact,  and  where  the  evi- 
dence showed  that  for  some  time  prior  to  liis  death  the  husband  had  made  no 
contribution  to  her  support,  dependency  was  not  established.  Avery  v.  Pacific 
Gas  &  Electric  Co.,  2  Cal.  I.  A.  C.  Dec.  311. 

Where  a  collier  deserted  his  wife  seven  years  before  his  death  by  accident, 
and  in  that  time  had  sent  her  only  9s.  6d.,  she,  living  in  the  workhouse,  was 
not  dependent  upon  him.  Devlin  v.  Pelaw  Main  Collieries  (1912)  5  B.  W.  C. 
C.  349,  C.  A.  Where  a  workman's  wife  had  lived  apart  from  him  for  twenty- 
two  years,  and  he  had  not  supported  her  during  that  time,  she  was  not  de- 
pendent upon  him.  New  Monckton  Collieries,  Ltd.,  v.  Keeling  (1911)  4  B.  W. 
C.  C.  332,  H.  L.,  and  4  B.  W.  C.  C.  49,  C.  A.  Where  a  wife,  whose  husband 
had  deserted  her  and  did  not  support  her,  lived  with  another  man,  and  bore 
him  children,  and  then  on  the  death  of  her  husband,  seven  years  later,  sought 
compensation  for  herself  and  her  two  legitimate  children,  they  were  none  of 
them  dependents.  Lee  v.  S.  S,  Bessie  (Owners  of),  (1912)  5  B.  W.  C.  C. 
55,  C.  A. 

81  WJiere  a  widow  of  a  deceased  employe,  who  had  separated  from  him 
prior  to  his  death,  and  who  was  living  apart  from  him  at  the  time  he  was 
killed  by  an  industrial  accident,  was  earning  her  living  without  receiving 
any  aid  from  him,  she  cannot  claim  compensation  under  dependency  in  fact, 
since  she  was  not  in  fact  supported  by  him  at  the  time  of  his  death.  (Cal. 
Wk.  Comp.,  etc.,  Act,  §  19  [b])  Delgado  v.  California  Portland  Cement  Co.,  1 
Cal.  I.  A.  C.  Dec.  436.  Dependency  is  not  established  as  a  matter  of  fact, 
where  the  evidence  shows  that  the  wife  had  deserted  the  husband,  and  for 
four  months  immediately  preceding  his  death  had  not  received  from  him 
any  contributions  for  her  support.    Holleron  v.  Hill,  2  Cal.  I.  A.  C.'  Dec.  2S9. 

In  Filliger  v.  Allen,  1  Conn.  Comp.  Dec.  35,  it  was  held  that  a  workman's 
widow,  who  had  not  lived  with  him  for  eleven  months  prior  to  the  injury 
because  he  drank,  and  during  that  time  only  received  $10  from  him  for  sup- 
port, living  with  a  son,  who  supported  her,  was  not  dependent  upon  the 
workman. 

Where  a  wife  left  her  husband,  and  took  their  child  with  her,  making  her 
own  livelihood  for  twelve  years,  she  and  the  child,  upon  the  death  of  the 
father,  cannot  claim  compensation  as  dependents.  Lindsay  v.  McGlashen  & 
Son,  Ltd.  (1909)  1  B.  W.  C.  C.  85,  Ct.  of  Sess.  The  wife  of  a  workman  who 
of  her  own  wishes  lived  separate  from  him,  and  supported  herself  was  not 
his  dependent.  Polled  v.  Great  Northern  Ry.  Co.  (No.  2),  (1912)  5  B.  W.  C. 
C.  620,  C.  A. 


§  77  workmen's  compensation  248 

true  where  she  has  secured  a  divorce. ^^  On  the  other  hand,  where 
a  wife  residing  out  of  the  state  with  her  child,  and  apart  from  her 
husband,  was  frequently  visited  by  her  husband,  who  sent  regular 
and  generous  contributions  for  their  support,  she  is  entitled  to  a 
death  benefit.*^  Where  a  workman  takes  into  his  family  a  minor 
child  not  related  to  himself  or  wife,  and  thereafter,  without  the 
child  ever  having  been  adopted,  deserts  his  family  and  for  several 
months  prior  to  his  death  does  not  contribute  to  their  support,  the 
child  is  not  a  dependent  of  the  workman.^* 

§  77.     Dependents  under  federal  Act 

The  federal  Act  of  1908,  continued  in  force  as  to  injuries  prior 
to  the  Act  of  1916,  provides  that,  if  the  injured  artisan  or  laborer 
die  within  the  year,  "leaving  a  widow,  or  a  child  or  children  under 
sixteen  years  of  age,  or  a  dependent  parent,"  they  shall  be  entitled 
to  compensation.  The  word  "parent"  in  the  Act  may  be  applied 
to  include  both  parents, ^^  but  not  to  include  a  stepfather  or  step- 
mother,^" or  a  foster  parent,  where  there  has  been  no  legal  adop- 
tion.*''    A  foster  parent  by  a  legal  adoption  may,  however,  be  a  de- 

82  Whore  a  workman  had  been  divorced  by  the  mother  of  his  two  children, 
she  obtaining  the  sole  care  and  custody  of  the  children,  and  he  liad  contributed 
nothing  to  their  support  since  that  time,  but  had  moved  to  another  state  in 
order  to  avoid  responsibility,  the  children  could  not  recover  compensation 
as  dependents.    Reed  v.  Rothe,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  33. 

83  Majeau  v.  Sierra  Nevada  Wood  &  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  425. 

84  Delgado  v.  California  Portland  Cement  Co.,  1  Cal.  I.  A.  C.  Dec.  436; 
Mahoney  v.  Gamble-Desmond  Co.,  90  Conn.  255,  96  Atl.  1025. 

8  5  (Dec.  Comp.  of  Treas.)  Op.  Sol.  Dcpt.  of  L.  7S4. 

8  6  In  re  McMurray,  Op.  Sol.  Dept.  of  L.  571. 

8T  In  re  Perkins,  Op.  Sol.  Dept.  of  L.  579. 

A  death  claim  was  filed  by  two  alleged  widows  and  by  a  foster  mother. 
The  facts  showed  that  neither  was  the  legal  widow,  and  as  the  foster  moth- 
er had  never  legally  adopted  decedent  she  was  held  not  a  dependent  parent. 
In  re  Garcia,  Op.  Sol.  Dept.  of  L.  611.  An  adopted  mother  must  sustain  the 
legal  relation  to  the  employ^  of  a  parent  before  a  payment  can  be  made  to  her 


249  PERSONS  ENTITLED  TO  COMPENSATION  §    7T 

pendent  parent  within  the  Act.^^  The  question  of  dependence  is 
one  of  fact,  and  the  fact  of  dependence  sufficiently  appears  if  par- 
tial dependence  is  shown.  Contributions  by  the  deceased  tend  to 
establish  a  condition  of  dependence,  but  this  is  not  the  only  crite- 
rion. The  natural  and  equitable  claim  for  support  which  the  par- 
ents have  upon  their  children  makes  it  proper  to  consider  the  actual 
needs  of  parents;  and  in  ascertaining  such  needs  it  is  necessary  to 
look  to  their  age,  circumstances,  position  in  life,  and  earning  ca- 
pacity.®^ A  parent  is  not  dependent  who  did  not  in  fact  depend  in 
some  measure  for  the  means  of  living  upon  the  deceased;  but,  if 
the  parent  is  in  actual  need,  the  fact  of  dependence  is  sufficiently 
shown  if  it  further  appears  that  the  deceased  attempted  to  supply 
such  need  even  to  a  slight  extent,  or  that,  but  for  the  death,  the 
parent  was  reasonably  assured  that  such  need  would  be  supplied 
in  some  substantial  measure.^'*  The  word  "child"  or  "children," 
as  used  in  the  Act,  is  not  restricted  to  a  child  or  children  born  in 

as  a  "dependent  parent"  witbin  tbe  meaning  of  the  federal  Act.     In  re  Huff 
(Dec.  Comp.  of  Treas.)  Op.  Sol.  D^pt.  of  L.  568. 
8  8  In  re  Huff,  Op.  Sol.  Dept.  of  L.  567. 

8  0  In  re  Rock,  Op.  Sol.  Dept.  of  L.  573. 

9  0  In  re  Branch,  Op.  Sol.  Dept.  of  L.  576. 

The  deceased  employe  had,  previous  to  going  to  work  for  the  Reclama- 
tion Service,  assisted  his  parents  in  the  operation  of  a  small  farm.  On  the 
day  he  began  work  he  was  killed.  Considering  tbe  age,  circumstances,  and 
condition  of  tbe  parents,  they  'syeve  held  entitled  as  dependent  parents.  In 
re  Encinas,  Op.  Sol.  Dept.  of  L.  601.  Where  decedent  was  20  years  of  age, 
and  until  a  few  days  previous  to  his  death  in  the  government  employ  he  had 
worked  on  the  farm  of  his  parents,  to  whom  he  had  promised  to  contribute 
from  his  government  wages,  but  met  his  death  before  receiving  any,  tbe  par- 
ents were  dependent.  In  re  Harris,  Op.  Sol.  Dept.  of  L.  598.  Where  dece- 
dent, a  single  man,  contributed  large  sums  to  bis  parents,  who  had  five 
younger  children  to  raise,  these  facts,  considering  the  financial  condition  of 
the  parents,  constituted  dependency.  In  re  Scott,  Op.  Sol.  Dept.  of  L.  595. 
Decedent  left  a  widow  and  widowed  mother.  The  widow  filed  claim,  but  died 
before  it  was  approved.  The  mother  joined  in  the  widow's  claim,  stating  that 
she  was  not  dependent  on  her  son.  Subsequent  to  the  widow's  death  the 
mother  filed  a  claim,  setting  forth  her  financial  condition,  that  she  was  61 
years  of  age,  and  depended  upon  her  efforts  for  support.     It  was  held  that. 


§  77  workmen's  compensation  250 

wedlock,  but  includes  illegitimate  offspring,^^  and  also  a  child 
Vs^hich  has  been  legally  adopted  according  to  the  law  of  the  domi- 
cile.^- A  woman  living  as  the  illegitimate  wife  of  an  employe  in 
the  Canal  Zone  does  not,  on  his  death,  become  his  widow  within 
the  meaning  of  the  Act.^^  A  woman  divorced  from  an  employe 
and  decreed  the  custody  of  his  children  is  not  entitled  to  compensa- 
tion for  his  death,  though  compensation  be  payable  to  her  as  guard- 
ian for  the  children.^*  The  marriage  of  a  widow  during  the  com- 
pensation year  does  not  bar  her  from  the  benefits  of  the  Act."^ 
Where  an  injured  workman  dies  before  having  made  application 
for  or  received  compensation,  the  spirit  and  purpose  of  the  Act 
warrants  payment  of  compensation  from  date  of  injury  to  date  of 
death,  as  well  as  for  the  remainder  of  the  year,  to  his  widow  or 
family.^^ 

although  the  son  had  not  contributed,  yet  her  financial  and  physical  con- 
dition rendered  her  a  dependent  parent.  In  re  Muun,  Op.  Sol.  Dept.  of  L.  597. 
Decedent  was  21  years  old.  The  parents  claimed  that  he  had  contributed 
a  certain  amount,  which  was  in  excess  of  his  earnings  during  a  certain  pe- 
riod. Considering  all  the  circumstances  of  the  case,  including  age  and  finan- 
cial condition  of  the  parents,  it  was  held  that  they  were  not  dependent  to  any 
extent  upon  the  son;  the  mere  fact  of  contributions  not  being  sufficient  of 
itself  to  establish  that  condition.  In  re  Rees,  Op.  Sol.  Dept.  of  L.  599.  A 
son  was  in  the  habit  of  sending  his  mother  in  Ireland  small  sums  of  money 
about  May  and  Christmas  of  each  year.  The  mother  was  a  pensioner  of  the 
British  government  and  had  three  other  sons.  The  deceased  son  left  a  widow. 
It  was  concluded  that  the  mother  was  not  a  dependent  parent.  In  re  Duffy, 
Op.  Sol.  Dept.  of  L.  594. 

01  In  re  Harding,  Op.  Sol.  Dept.  of  L.  553. 

92  In  re  Estorga,  Apr,  3,  1915,  Op.  Sol.  Dept.  of  L.  p.  566, 

9  3  In  re  Howell,  Op.  Sol,  Dept.  of  L,  549.  The  Act  does  not  grant  com- 
pensation to  a  woman  who  for  several  years  lived  in  Barbados  and  as  the 
"reputed  wife"  of  an  employ^  who  was  killed  in  the  Canal  Zone,  and  to  whom 
she  had  borne  three  illegitimate  children.  In  re  Agard,  Op.  Sol.  Dept.  of  L. 
550. 

94  Op.  Sol.  Dept.  of  L.  551. 

9  5  (Dec.  Comp.  of  Treas.)  Op.  Sol.  Dept.  of  L.  783. 

9  6  In  re  Sullivan,  Op.  Sol.  Dept.  of  L.  609.  Where  an  injured  employ^ 
dies  several  days  or  weeks  after  the  injury,  compensation  is  payable  from  that 


251  PERSONS   ENTITLED  TO   COMPENSATION  §    78 

§  78.     Claim  of  dependent 

A  dependent's  claim  for  compensation  does  not  arise  from  the 
workman's  injury,  but  is  a  new  and  distinct  right  of  action  created 
by  his  death,^^  and  not,  therefore,  barred  by  an  award  to  or  settle- 
ment with  the  workman.^®  It  does  not  affect  the  right  to  recover 
on  such  claim  that  financial  benefits  have  accrued  to  the  depend- 
ent from  the  workman's  death,^^  or  that  the  workman's  contribu- 

flate  to  and  including  the  date  of  death,  and  for  the  balance  of  the  year  to 
his  widow,  children,  or  dependent  parents,  as  the  case  may  be.  In  re  Mc- 
Carrell,  Op.  Sol.  Dept.  of  L.  607. 

9  7  (Workmen's  Compensation  Act,  Gen.  St.  1913,  §  S208,  as  amended  by 
Laws  1915,  c.  209,  §  5)  Nesland  v.  Eddy,  131  Minn.  62,  154  N.  W.  661.  This 
case  finds  support  in  Anderson  v.  Fielding,  92  Minn.  42,  99  N.  W.  357,  104 
Am.  St.  Rep.  665 ;  Michigan  Central  R.  Co.  v.  Vreeland,  227  U.  S.  59,  33  Sup. 
Ct.  192,  57  L.  Ed.  417,  Ann.  Cas.  1914C,  176;  American  R.  Co.  v.  Didrick- 
sen,  227  U.  S.  145,  33  Sup.  Ct.  224,  57  L.  Ed.  456. 

9  8  Milwaukee  Coke  &  Gas  Co.  v.  Industrial  Commission,  160  Wis.  247,  151 
N.  W.  245. 

Payment  of  compensation  to  a  minor  employe  does  not  bar  the  independent 
right  of  the  parent  to  recover  for  the  loss  to  herself  from  the  injury  to  her 
son.  Payment  of  such  compensation  is  in  no  sense  a  payment  of  wages,  though 
based  on  wages.    King  v.  Viscoloid  Co.,  219  Mass.  420,  106  N.  E.  9SS. 

Where  a  workman  returned  to  work  after  the  accident,  but  later  died  from 
its  effects,  the  right  of  his  dependents  to  recover  is  independent  and  separate, 
and  is  not  affected  by  an  implied  agreement  which  might  be  assumed  to  have 
ended  compensation  when  he  returned  to  work.  Williams  v.  Vauxhall  Col- 
liery Co.,  Ltd.  (190S)  9  W.  C.  C.  120,  C.  A.  (Act  of  1S97).  The  right  of  the  de- 
pendents of  a  workman  who  had  accepted  money  and  given  his  employers  a 
receipt  in  full  satisfaction  of  all  his  claims  under  the  Employers'  Liability 
Act  or  at  common  law  (which  receipt  was  a  mere  device,  covering  com- 
pensation under  the  Compensation  Act),  was  not  affected  or  barred  by  this 
settlement,  as  their  right  was  independent.  Howell  v.  Bradford  &  Co.  (1911) 
4  B.  W.  C.  0.  203,  0.  A.  On  claim  for  compensation  by  the  dependents  of  a 
deceased  workman,  the  fact  that  he  had  received  payments  under  a  regis- 
tered agreement,  which  had  been  canceled  on  review,  did  not  bar  their  inde- 
pendent right.    Jobson  v.  Cory  &  Sons,  Ltd.  (1911)  4  B.  W.  C.  C.  284,  G.  A. 

As  to  effect  of  release  to  bar  claim,  see  §  ISO,  post. 

99  It  is  immaterial  whether  the  claimant  inherited  anything  from  the  work- 
man's estate.  State  ex  rel.  Crookston  Lumber  Co.  v.  District  Court,  131 
Minn.  27,  154  N.  W.  509. 

The  widow  of  a  deceased  workman  was  wholly  dependent,  notwithstand- 


§  79  workmen's  compensation  252 

tions  shall  not  have  approximated  the  amount  of  the  award,  though 
it  be  the  minimum  provided  by  the  statute.^  A  dependent  is  en- 
titled to  compensation  for  the  full  period  allowed  by  the  Connecti- 
cut Act,  though,  if  he  submitted  to  an  operation,  he  might  not 
thereafter  be  a  dependent.^  Apportionment  of  compensation  be- 
tween dependents  is  considered  in  a  subsequent  section.* 

§  79.     Payment  to  representatives — Survival  of  claim 

Compensation  due  minor  dependents  is  payable  to  their  guard- 
ian or  trustee,  or  to  their  surviving  parent  where  by  operation  of 
law  he  is  entitled  to  receive  the  payment  on  their  behalf.*  In  some 
states,  where  a  widow  and  child  are  both  entitled  to  compensation. 
the  whole  amount  may  be  awarded  to  the  widow  without  appor- 
tionment, unless  an  apportionment  is  specially  applied  for.'  And 
where  the  deceased  workman  leaves  minor  children  and  a  surviv- 
ing dependent  parent  of  such  children,  no  guardian  ad  litem  or  trus- 

ing  the  fact  that  she  profited  $100  by  Ms  death.    Pryce  v.  Penridyber  Naviga- 
tion Colliery  Co.  (1902)  4  W.  C.  C.  115,  C.  A. 
See  §  ISl,  post. 

1  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245. 

2  Id. 

3  See  §  192,  post. 

4  Compensation  awarded  to  the  infant  children  of  a  deceased  worlvman  may 
be  paid  to  his  widow,  where  by  appointment  or  operation  of  law  she  is  their 
general  guardian.  (Wk.  Comp.  Act,  §§  16,  20)  Woodcock  v.  Walker,  170  App. 
Div.  4,  155  N.  Y.  Supp.  702. 

Where  the  dependent  is  a  minor,  the  benefits  to  which  he  is  entitled  will 
be  ordered  paid  to  a  trustee  for  him.  Mitchell  v.  Fairchild-Gilmore-Wilton 
Co.,  1  Cal.  I.  A.  C.  Dec.  71. 

Where  a  deceased  employ^  was  survived  by  a  wife  and  child  of  twenty 
months,  both  dependent,  since  the  minor  child  is  under  the  disability  of  in- 
fancy and  in  the  custody  of  her  mother,  that  part  of  the  compensation  appor- 
tioned her  will  be  made  payable  to  the  mother  for  the  use  of  the  child.  (Pacre 
&  A.  Gen.  Code,  §  1465—68)  In  re  Laura  ShafCer,  vol.  1,  No.  7,  Bui.  Ohio 
Indus.  Com.  p.  7. 

5  Taylor  v.  Seabrook,  87  N.  J.  Law,  407,  94  Atl.  399.  As  to  apportionment, 
see  §  192,  post. 


•253  PERSONS   ENTITLED  TO   COMPENSATION  §    79 

tee  will  be  appointed,  if  the  surviving-  parent  is  a  proper  person  and 
entitled  to  share  in  the  award  in  her  own  right;  but  the  entire 
death  benefit  will  be  made  payable  to  her  for  the  support  of  herself 
and  family,  without  giving  the  minor  children  any  legal  share 
therein,  thus  avoiding  the  necessity  of  appointing  a  trustee  or 
guardian  and  the  giving  of  a  bond.''  However,  where  lump  sums 
are  awarded  in  amounts  sufficient  to  reasonably  justify  the  invest- 
ment, a  guardian  should  usually  be  appointed.'  The  mother  of  il- 
legitimate children  is  a  proper  person  to  be  appointed  their  guard- 
ian.^ 

When  incapacity  lasts  more  than  15  days,  and  the  employe  dies 
from  causes  other  than  those  producing  the  original  injury  and  be- 
fore a  formal  claim  is  filed,  the  legal  representatives,  who  under 
the  federal  Act  are  entitled  to  file  a  claim  and  receive  payment  cov- 
ering period  of  incapacity,  are  the  administrator,  the  executor,  or 
the  heirs  or  next  of  kin.^  Where,  on  account  of  death  of  an  em- 
ploye, compensation  has  been  allowed  under  this  Act  to  the  widow 
and  child,  and  the  widow  dies  within  the  compensation  period,  and 
the  care  of  the  child  devolves  upon  the  child's  maternal  grand- 
mother, the  remainder  of  the  year's  compensation  may  be  paid  to 
such  maternal  grandmother  for  the  use  and  benefit  of  the  child. ^° 

6  La  Salle  v.  Whiting-Mead  Commercial  Co.,  1  Cal.  I.  A.  C.  Dec.  346. 
Where  the  deceased  employe  leaves  a  widow  and  minor  children,  the  award 
is  not  to  be  divided  among  them,  but  is  to  be  made  payable  to  the  widow 
alone,  to  be  used  by  her  for  the  support  of  herself  and  children  in  such  man- 
ner as  she  sees  fit;  hence  it  is  not  necessary  that  a  guardian  ad  litem  be 
employed  for  the  minor  children,  where  the  widow,  their  mother,  is  the  ap- 
plicant. Kennedy  v.  Guardian  Casualty  &  Guaranty  Co.,  1  Cal.  I.  A.  0.  Dec. 
152. 

Money  allotted  to  infant  children  may  be  paid  to  the  wife,  without  the  ap- 
pointment of  a  general  guardian  and  the  attendant  expenses.  Woodcock  v. 
Walker,  170  App.  Div.  4,  155  N.  Y.  Supp.  702. 

7  (Wk.  Comp.  Act  Wash.  §  6)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  18. 

8  Sexton  V.  Massachusetts  Bonding  &  Insurance  Co.,  1  Cal.  I.  A.  C.  Dec.  48. 

9  In  re  Karumbellas,  Op.  Sol.  Dept.  of  L.  614. 

10  In  re  Jefferson,  Oct.  1,  1910,  Op.  Sol.  Dept.  of  L.  p.  564. 


§  79  workmen's  compensation  254 

Compensation  due  dependents  residing  in  a  foreign  country  will 
not  usually  be  paid  to  a  consul  of  that  country  until  he  shows  au- 
thority to  receive  and  transmit  same.^^  It  is  not  enough  merely 
that  he  has  been  appointed  administrator  of  the  deceased  em- 
ploye.^^  But  under  the  Ohio  Act  a  foreign  consul  is  entitled  to  re- 
ceive the  compensation  payments  due  citizens  and  residents  of  his 
country  without  a  specific  power  of  attorney,  unless  the  persons 
entitled  to  payment  have  selected,  through  power  of  attorney,  some 
other  representative.^^ 

A  dependent's  right  to  compensation  will  survive,  and  if  not  sat- 
isfied before  death  of  the  dependent  will  pass  to  his  or  her  per- 
sonal   representative,    unless    otherwise    provided    by    statute.^* 

11  A  foreign  consul  will  be  paid  compensation  due  dependents  residing  in 
a  foreign  country  only  when  he  files  with  the  Commission  a  power  of  attorney 
from  the  person  entitled  to  receive  the  money  authorizing  him  to  receive 
and  transmit  same.  (Comp.  Act,  §  41)  In  re  Katharina  Schatz,  vol.  1,  No. 
7,  Bui.  Ohio  Indus.  Com.  p.  60. 

In  Salvatore  v.  Andreani  &  Gelormino,  1  Conn.  Comp.  Dec.  169,  it  was  held 
that  the  official  position  of  the  Italian  consul  does  not  entitle  him  to  receive 
the  award  of  a  dependent  widow  residing  in  Italy,  but  that  it  may  be  made 
to  him  where  he  has  an  authorization  from  her  to  receive  her  compensation. 

12  That  the  Greek  consul  at  New  York  was  appointed  administrator  of  a 
deceased  employ§  did  not  make  him  the  legal  representative  of  beneficiaries. 
In  re  Lemanes,  Op.  Sol.  Dept.  of  L.  613. 

13  Vujic  V.  Youngstown  Sheet  &  Tube  Co.  (D.  C.)  220  Fed.  390. 

14  An  award  of  compensation  from  the  Ohio  state  insurance  fund  to  a 
wholly  dependent  person  vests  in  the  dependent  when  the  award  is  made,  so 
that,  in  case  of  the  death  of  such  dependent,  his  or  her  personal  representa- 
tive is  entitled  to  the  balance,  if  any,  remaining  unpaid.  (Workmen's  Com- 
pensation Act,  §  35;  103  Ohio  Laws,  p.  72)  State  v.  Industrial  Commission, 
92  Ohio  St.  434,  111  N.  E.  299. 

Compensation  which  had  accrued  to  the  employe's  widow  between  death 
of  the  employs  and  her  death  became  part  of  her  estate,  and  claim  therefor 
could  not  be  made  by  their  children  as  beneficiaries.  In  re  Towle,  Op.  Sol. 
Dept.  of  L.  565. 

Where  the  widow  of  a  deceased  workman  claimed  compensation,  but  died 
before  the  case  was  tried,  her  right  survived  to  her  legal  personal  represent- 
ative. Darlington  v.  Roscoe  &  Sons  (1908)  9  W.  C.  C.  1,  C.  A.  (Act  of  1897). 
Where  the  mother  of  a  deceased  workman,  who  was  his  only  dependent,  died 


255  PERSONS   ENTITLED  TO   COMPENSATION  §    79 

Thus,  where  a  widow  who  was  entitled  to  a  death  benefit  un- 
der the  California  Act  because  of  the  death  of  her  husband,  died 
before  an  award  was  made,  leaving  a  dependent  son  of  herself  and 
such  employe,  the  son  was  entitled  to  the  whole  death  benefit  un- 
der a  provision  that  the  Commission  "may  order  payment  to  a  de- 
pendent subsequent  in  right,  or  otherwise  entitled,  upon  good  cause 
being  shown  therefor."  ^^  But  the  liability  of  an  employer  paying 
compensation  to  the  mother  of  a  deceased  workman  ceases  upon 
her  death,  as  to  payments  then  unaccrued,  and  her  estate  is  not  en- 
titled to  receive  the  remaining  payments,  which  would  have  been 
due,  had  she  lived. ^'^  Therefore,  where,  after  the  death  of  the 
mother,  her  administrator  files  a  claim  for  the  payment  to  the  es- 
tate of  the  award,  the  estate  is  entitled  to  only  such  portion  of  the 
award  as  would  have  been  payable  to  her  to  the  time  of  her  death." 
Where  in  a  Massachusetts  case  it  appeared  that  the  employe,  a 
widower,  left  two  minor  children  wholly  dependent  upon  his  earn- 
ings for  support,  and  one  of  them  died  shortly  after  the  decease  of 
his  father,  the  Supreme  Judicial  Court  affirmed  a  decision  that  the 
sum  due  those  wholly  dependent  should  be  paid  the  administrator 
for  the  benefit  of  the  surviving  child. ^^ 

Under  the  Connecticut  Act,  compensation  for  disability  forms 
no  part  of  the  estate  of  a  deceased  workman,  but  ceases  at  his  death, 
except  that  for  medical  and  burial  expense,  which  is  payable  to  his 

before  she  had  claimed  compensation,  her  claim  survived  to  her  legal  per- 
sonal representative.  United  Collieries,  Ltd.,  v.  Hendry  (1910)  2  B.  W.  C. 
C.  308,  H.  L.,  and  (1909)  1  B.  W.  C.  0.  289,  Ct.  of  Sess. 

15  (Wk.  Comp.  Act  Cal.  §  19  [2])  Hughes  v.  Degen  Belting  Co.,  2  Cal.  I.  A. 
C.  Dec.  595. 

16  Matecny  v.  Vierling  Steel  Works,  187  111.  App.  448;  In  re  Murphy  (Mass.) 
113  N.  E.  283. 

17  Ledford  v.  Caspar  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  691. 

18  Janes  v.  Fidelity  &  Casualty  Co.  of  New  York,  2  Mass.  Wk.  Rep.  of 
Comp.  Cases,  217  (decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.,  also 
by  Sup.  Jud.  Ct,  217  Mass.  192,  104  N.  E.  556). 


§  80  workmen's  compensation  256 

administrator.  Under  the  New  Jersey  Act  decedent's  administra- 
tor may  sue  for  the  benefit  of  the  dependents.^* 

§  80.     Determination  of  question  of  dependency 

Actual  dependency  is  a  question  of  fact,-"  to  be  determined,  in 
the  absence  of  any  applicable  and  conclusive  statutory  presump- 

19  Corcoran  v.  Farrel  Foundry  &  Machine  Co.,  1  Conn.  Comp.  Dec.  42. 
(Wk.  Comp.  Act,  §  2,  par.  19)  Conners  v.  Public  Service  Electric  Co.  (N.  J.) 
97  Atl.  792. 

2  0  Miller  v.  Public  Service  Ey.  Co.,  84  N.  J.  Law,  174,  85  Atl.  1030,  affirmed 
in  (Wk.  Comp.  Act,  §  43)  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl. 
245;  Main  Colliery  Co.,  Ltd.,  v.  Da  vies,  16  T.  R.  460;  Houlihan  v.  Connect- 
icut River  R.  R.,  164  Mass.  555,  42  N.  E.  108;  American  Legion  of  Honor  v. 
Perry,  140  Mass.  580,  5  N.  E.  634;    JNIiller  v.  Riverside  Storage  Co.  (Mich.) 

155  N.  W.  462;    State  ex  rel.  Globe  Indemnity  Co.  v.  District  Court  (Minn.) 

156  N.  W.  120;  Muzik  v.  Erie  R.  Co.,  85  N.  J.  Law,  131,  89  Atl.  248,  86 
N.  J.  Law,  695,  92  Atl.  1087;  Havey  v.  Erie  R.  Co.,  88  N.  J.  Law,  684,  96 
Atl.  995;  Walz  v.  Holbrook,  Cabot  &  Rollins  Corp.,  170  App.  Div.  6,  155 
N.  Y.  Supp.  703 ;  In  re  Branch,  Op.  Sol.  Dept.  of  L.  576;  In  re  Rock,  Op.  Sol. 
Dept.  of  L.  573. 

Where  the  evidence  showed  that  deceased  contributed  to  the  support  of  his 
mother,  and  that  she,  while  not  immediately  dependent  for  sustenance  on  such 
contributions,  was,  because  of  advancing  years,  condition  of  mind,  and  lack 
of  regular  employment  and  of  property,  liable  to  become  a  dependent,  the 
question  whether  she  was  partially  dependent  on  deceased  was  for  the  jury. 
Appeal  of  Hotel  Bond  Co.,  supra. 

Whether  the  daughter  of  a  deceased  workman  was  dependent  upon  him 
for  her  support  is  a  question  of  fact.  In  re  Herrick,  217  Mass.  Ill,  104  N. 
E.  432. 

Where  it  appeared  that  the  inability  of  the  workman  to  obtain  and  to  per- 
form sufficiently  remunerative  permanent  work  was  the  cause  of  his  failure 
to  provide  a  home  for  his  wife  and  child,  that  their  living  apart  was  charge- 
able to  his  mental  and  physical  deficiencies  and  characteristics  and  not  to  his 
willful  negligence,  and  that  he  paid  doctors'  bills  and  grocery  bills,  bought 
clothes  for  the  child,  and  gave  $200  or  $300  to  his  wife,  the  Industrial  Ac- 
cident Board  should  have  determined  as  a  fact  whether  his  wife  was  depend- 
ent upon  him  at  the  time  of  his  death.  St.  1911,  c.  751,  pt.  5,  §  2  (c),  as  amend- 
ed by  St.  1914,  c.  708,  §  3 ;  In  re  Newman's  Case,  222  Mass.  563,  111  N.  E.  359, 
L.  R.  A.  1916C,  1145.  It  was  a  question  of  fact  whether  the  mother  and  sister 
of  a  deceased  employS,  to  whose  support  he  had  contributed,  were  wholly  de- 
pendent upon  him.     (St.  1911,  c.  751,  pt.  2,  §  6)  Bartley  v.  Boston  &  N.  St 


257  PERSONS   ENTITLED  TO   COMPENSATION  §    80 

tion/^  from  the  circumstances  of  the  particular  case,^^  usually  those 
circumstances  existing  at  the  date  of  the  injury,^^  rather  than  at 
the  date  of  death,  as  specified  by  some  Acts.^*     The  Minnesota 

Ry.,  198  Mass.  163,  83  N.  E.  1093;  Potts  v.  Mddrie  &  Benhar  Coal  Co.,  [1913] 
A.  C.  531,  538;  Petrozino  v.  American  Mut.  Liability  Co.  (Caliendo's  Case), 
219  Mass.  498,  107  N.  E.  370. 

Whether  the  father  and  mother  and  minor  brothers  and  sisters,  living  to- 
gether in  the  same  household  and  subsisting  in  part  on  the  earnings  con- 
tributed by  the  deceased  to  his  father,  the  head  of  the  household,  and  ap- 
plied by  the  father  to  the  support  of  himself  and  his  family,  were  actual  de- 
pendents on  the  deceased,  was  a  question  of  fact  for  the  trial  judge.  Havey 
V.  Erie  R.  Co.,  87  N.  J.  Law,  444,  95  Atl.  124.  Where  decedent's  sister  was  of 
age,  her  actual  dependency  was  a  pure  question  of  fact.  Conuers  v.  Public 
Service  Electric  Co,  (N.  J.)  97  Atl.  792. 

Where,  after  deserting  his  children  and  paying  nothing  to  help  support 
them,  a  father  three  years  later,  upon  obtaining  a  good  position,  agreed  to 
give  them  a  monthly  sum,  but  was  injured  and  died  before  he  had  paid  any- 
thing, the  question  of  dependency  must  be  decided  as  a  question  of  fact,  and 
the  finding  made  by  the  sherifC-substitute  that  they  were  not  dependent  "in 
fact  and  in  law"  cannot  stand.  Dobbies  v.  Egypt  &  Levant  Steamship  Co., 
Ltd.  (3913)  2  B.  W.  C.  C.  348,  Ct.  of  Sess. 

21  See  §§  81,  82,  post. 

22Mahoney  v,  Gamble-Desmond  Co.,  90  Conn.  255,  96  Atl.  1025;  Garcia  v. 
Indus.  Ace.  Com.  of  Cal.,  2  Cal.  I.  A,  C.  Dec.  630,  171  Cal.  57,  151  Pac.  741 ; 
Stevenson  v.  Illinois  Watch  Case  Co.,  1S6  111.  App.  418. 

23  Mahoney  v.  Gamble-Desmond  Co.,  90  Conn.  255,  96  Atl.  1025. 

In  Massachusetts,  whether  an  employe's  wife  and  child,  who  were  living 
apart  from  him  at  the  time  of  his  death,  were  dependent  on  him  for  support, 
must  be  determined  on  the  evidence  of  the  fact  as  it  existed  "at  the  time  of 
the  injury."  (St.  1911,  c.  751,  pt.  2,  §  7)  In  re  Bentley,  217  Mass.  79,  104  N. 
E.  432. 

Whether  a  person  within  the  class  which  may  be  partially  dependent,  but 
not  within  the  class  conclusively  presumed  to  be  wholly  dependent,  is  a  de 
pendent,  is  a  question  of  fact  to  be  determined  as  of  the  date  of  the  injury. 
Miller  v.  Riverside  Storage  &  Cartage  Co.  (Mich.)  155  N.  W.  462. 

Dependency  is  a  question  of  fact,  determinable  according  to  the  facts  ex- 
isting in  each  particular  case  at  the  time  of  the  fatal  injury,  except  in  the 
instances  specified  in  paragraph  4  of  section  35  of  the  Compensation  Act. 
In  re  Maude  M.  Hughes,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  148. 

24  The  New  York  Act  makes  dependency  at  the  time  of  death  a  condition 
for  making  an  award  to  the  dependent.  (Wk.  Comp.  Act,  §  16,  subd.  4)  Tirre 
v.  Bush  Terminal  Co.,  172  App.  Div.  386,  158  N.  Y.  Supp.  883. 

HoN.CoMr. — 17 


§  81  workmen's  compensation  258 

Supreme  Court  has  held  that  the  right  to  compensation  is  controlled 
by  the  law  in  force  at  the  time  of  death,  rather  than  at  the  time  of 
accident.^® 

§  81.     Presumption  of  dependency — Husband  and  wife 

The  widow  of  a  workman  killed  in  his  employment  is  usually  en- 
titled to  compensation,  regardless  of  the  question  of  dependen-cy. 
The  mere  fact  of  widowhood  dispenses  with  proof  of  dependency.^® 
As  used  in  a  statutory  provision  that  a  wife  shall  be  conclusively 
presumed  to  be  dependent  for  support  on  a  husband  "with  whom  she 
lives"  or  "with  whom  she  was  living  at  the  time  of  his  death,"  the 
words  quoted  mean  living  together  as  husband  and  wife  in  the 
ordinary  acceptation  of  these  words. ^^    The  conclusive  presumption 

2  5  state  ex  rel.  Carlson  v.  Dist.  Ct.,  131  Minn.  96,  154  N.  W.  661. 

Where  the  death  of  the  deceased  occurred  on  April  30,  1914,  the  right  to 
compensation  was  governed  by  Laws  1913,  c.  467  (Gen.  St.  1913,  §§  S195-S230), 
and  not  by  the  amendment  of  1915  (Laws  1915,  c.  209).  State  ex  rel.  Globe 
Indemnity  Co.  v.  District  Court  (Minn.)  156  N.  W.  120. 

2  6  Moell  V.  Wilson,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10,  p.  15. 

2  7  The  phrase  "with  whom  she  lives"  means  living  together  as  husband 
and  wife  in  the  ordinary  acceptation  and  significance  of  these  words  in  com- 
mon understanding.  They  mean  maintaining  a  home  and  living  together  in 
the  same  household,  or  actually  cohabiting  under  conditions  which  would  be 
regarded  as  constituting  a  family  relation.  There  may  be  temporary  absences 
and  incidental  interruptions  arising  out  of  changes  in  the  house  or  town  of 
residence,  or  out  of  travel  for  business  or  pleasure.  But  there  must  be  a 
home  and  a  life  in  it.  The  matrimonial  abode  may  be  a  roof  of  their  own,  a 
hired  tenement,  a  boarding  house,  a  rented  room,  or  even  a  room  in  the  house 
of  a  relative  or  friend,  however  humble  or  temporary  it  may  be.  But  it  is 
the  situation  arising  from  the  absence  of  a  common  home,  a  place  of  marital 
association  and  mutual  comfort,  broken  up  or  put  in  peril  of  hardship  or  ex- 
tinction by  the  husband's  death,  which  is  protected  by  the  conclusive  pre- 
sumption of  dependency  established  beyond  the  peradventure  of  dispute  by 
the  statute.  Under  such  circumstances  the  widow  is  given  the  benefit  of  an 
irrefutable  assumption  that  she  was  supported  by  the  husband.  It  well  may 
be  that  this  was  a  legislative  concession  to  the  recognized  benefit  to  society 
arising  from  the  living  together  of  husband  and  wife,  and  that  like  conces- 
sion should  not  be  made  to  the  anomalous  situation  of  a  marital  relation 


259  PERSONS   ENTITLED  TO   COMPENSATION  §    81 

will  not  be  prevented  from  arising  by  a  separation  for  a  long  term 
of  years,  where  during  the  time  the  husband  evidenced  an  intent  to 
renew  family  relations  by  contributing  regularly  and  substantially 
to  the  support  of  the  dependents.^^     That  husband  and  wife  are 

not  accompanied  by  a  living  togetlier,  leaving  the  fact  of  dependency  in  such 
cases  to  be  proved  as  it  is  in  other  cases.  There  may  be  many  instances 
where  there  is  a  total  dependency,  though  a  temporary  separation.  There 
may  be  a  physical  dissociation  and  a  breaking  up  of  the  home,  with  a  definite 
purpose  to  resume  the  normal  conditions  of  married  life.  The  Act  provides 
for  these  cases  by  requiring  dependency  to  be  determined  in  accordance  with 
the  truth.  But  words  which  signify  living  together  do  not  describe  such  a 
situation.  These  words  exclude  a  condition  where  there  is  neither  a  home 
nor  an  actual  dwelling  together,  and  where  the  suspension  of  this  relation 
is  something  more  than  a  mere  temporary  incident  of  a  changing  family 
habitation.  In  re  Nelson,  217  Mass.  467,  105  N.  E.  357,  disapproving  North- 
western Iron  Co.  V.  Industrial  Commission,  154  Wis.  97,  142  N.  W.  271,  L. 
E.  A.  1916A,  366,  Ann.  Cas.  1915B,  877,  so  far  as  inconsistent  with  this  de- 
cision. 

Where  it  is  not  shown  that  the  wife  was  living  apart  from  her  husband 
for  justifiable  cause,  the  question  of  her  dependency  on  him  should  be  de- 
termined under  St.  1914,  c.  708,  §  7,  and  it  should  not  be  conclusively  pre- 
sumed that  she  was  wholly  dependent  upon  him  under  section  3,  cl.  "a."  In 
re  Newman's  Case,  222  Mass.  563,  111  N.  E.  359,  L.  R.  A.  1916C,  1145.  Liv- 
ing together  means  normal  marital  cohabitation.  In  re  Fierro's  Case,  223 
Mass.  378,  111  N.  E.  957. 

A  wife  is  conclusively  presumed  to  be  dependent  upon  a  husband  with 
whom  she  was  living  at  the  time  of  his  death.  (Wli,  Comp.  Act  Cal.  §  19  [a] 
[1])  Irwin  V.  Globe  Indemnity  Co.  of  N.  Y.,  1  Cal.  I.  A.  C.  Dec.  547 ;  White 
V.  Scioto  Land  Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  114.  This  is  true, 
even  though  they  had  been  estranged  for  about  four  months  prior  to  the 
date  of  the  fatal  injury,  where  a  reconciliation  had  taken  place  shortly  be- 
fore the  injury,  and  they  were  living  together  for  a  period  of  eight  days  be- 
fore he  died.  Peloquin  v.  Fidelity  &  Deposit  Co.  of  Md.,  2  Mass.  Wk.  Comp. 
Cases,  718  (decision  of  Com.  of  Arb.). 

2  8  Tomasi  v.  Mazzotti  &  Butini,  2  Cal.  I.  A.  C.  Dec.  936.  Where  a  work- 
man, coming  to  this  country  seven  years  before  the  accident,  left  in  Italy  his 
wife  and  children,  to  whom  he  sent  regular  contributions  for  their  support, 
averaging  over  $180  annually  during  the  last  three  years,  the  wife  was  liv- 
ing with  him  at  the  time  of  his  death  within  the  meaning  of  section  19  (a) 
(1)  of  the  Act,  and  therefore  conclusively  presumed  to  be  totally  dependent. 
Id.     Where  up  to  the  time  of  his  death  a  workman  had  been  supporting  his 


§  81  workmen's  compensation  260 

physically  dwelling-  apart  will  not  prevent  this  conclusive  pre- 
sumption from  arising,  where  it  is  intended  that  their  separation 
shall  be  merely  temporary.^^     But  this  presumption  does  not  arise 

wife,  who  during  the  four  years  of  his  absence  from  her  had  remained  in 
the  foreign  country  of  their  birth,  she  was  "living  with"  him  at  the  time  of 
his  death,  within  section  19.  Chulata  v.  Ransome-Crummey  Constr.  Co.,  2 
Cal.  I.  A.  C.  Dec.  1026.  There  was  a  similar  holding  in  Lopez  v.  Fremont 
Cons.  Mining  Co.,  3  Cal.  I.  A.  C.  Dec.  31. 

Where  a  widow  residing  in  Italy  was  wholly  supported  by  and  wholly  de- 
pendent upon  her  husband,  although  for  three  years  she  had  been  separated 
from  him  by  reason  of  his  residence  in  California,  and  it  clearly  appeared 
that  he  intended  to  reunite  with  her,  which  intention  was  about  to  be  car- 
ried out  at  the  time  of  his  death,  she  was  "living  with"  him  at  the  time  of 
death,  and  because  of  that  fact,  and  also  because  of  her  actual  support,  she 
was  entitled  to  a  death  benefit  as  a  total  dependent.  Petrucci  v.  Red  River 
Lumber  Co..  3  Cal.  I.  A.  C.  Dec.  40.  But  a  wife,  resident  abroad  and  for  nine 
years  separated  from  her  husband,  will  not  be  conclusively  presumed  to  be 
"living  with"  him,  within  section  19  (a)  (1)  of  the  California  Act,  in  the  ab- 
sence of  sufficient  evidence  of  regular  and  substantial  contributions  by  him 
tending  to  show  an  intent  to  renew  family  relations.  Claudio  v.  California 
Street  Cable  Ry.  Co.,  3  Cal.  I.  A.  C.  Dec.  7. 

In  Salvatore  v.  Andreani  &  Gelormino,  1  Conn.  Comp.  Dec.  169,  where  the 
deceased  workman  had  been  in  America  six  years,  and  had  continually  dur- 
ing that  time  sent  sums  of  money  to  his  wife  in  Italy,  and  expected  later  to 
rejoin  her  in  Italy,  they  were  "living  together"  within  the  contemplation  of 
the  Connecticut  Act,  and  she  was  held  to  be  presumptively  dependent  upon 
him. 

29  A  wife  is  living  with  her  husband  at  the  time  of  his  death,  within  the 
meaning  of  paragraph  4  of  section  35  of  the  Compensation  Act,  where  there 
has  been  no  legal  or  actual  separation  in  the  nature  of  an  estrangement,  al- 
though they  are  not  physically  dwelling  together,  and  no  facts  appear  sug- 
gesting the  inference  that  either  husband  or  wife  had  abandoned  the  other, 
and  had  formed  the  intention  of  permanently  living  separate  and  apart.  In 
re  Militza  Bonsanar,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  87. 

Where  the  deceased  and  his  wife  have  been  living  together  as  husband 
and  wife,  but  for  two  months  prior  to  the  accident  the  wife  had  been  visiting 
with  a  sister  in  Wyoming  until  the  deceased  could  prepare  a  home  for  her 
in  San  Diego,  where  she  had  planned  to  join  him  the  week  following  the  ac- 
cident, it  was  held  that  such  facts  warrant  the  finding  that  deceased  and 
his  wife  were  living  together  as  man  and  wife  at  the  time  of  the  accident 
and  death,  within  the  meaning  of  the  Workmen's  Compensation,  Insurance, 
and  Safety  Act.     State  Compensation  Insurance  Fund  of  the  State  of  Cal. 


261  PERSONS   ENTITLED  TO   COMPENSATION  §    81 

where  the  alleged  wife  is  not  a  legal  wife.^°  Nor  does  it  ordinarily 
arise  where  they  are  living  apart/ ^  particularly  where  the  wife  is 

V.  Breslow,  1  Cal.  I.  A.  C.  Dec.  194.  But  evidence  that  an  Italian  resident 
of  California  in  1912  sent  $140  to  his  wife,  who  had  remained  in  Italy,  and, 
after  remitting  $40  to  her  the  following  February,  was  then  imprisoned  un- 
til the  next  January,  and  on  resuming  work  was  accidentally  killed  during 
the  next  June,  having  made  no  further  remittance,  with  no  evidence  other- 
wise of  his  intent  to  renew  family  relations,  was  insufficient  to  establish  that 
they  were  "living  together."  Claudio  v.  California  Street  Cable  Ry.  Co.,  3 
Cal.  I.  A.  C.  Dec.  7. 

The  husband  and  wife  are  to  be  considered  as  living  together,  even  though 
one  or  the  other  may  be  absent  from  the  home  for  a  considerable  length  of 
time  and  separated  by  great  distance;  they  are  living  together  when  they 
are  not  living  apart,  when  there  is  neither  legal  nor  actual  separation  of 
the  bonds  of  matrimony.  Nevadjic  v.  Northwestern  Iron  Co.,  Bui.  Wis.  Indus. 
Com.  vol.  1,  p.  93;  Id.  1912-13,  p.  21,  affirmed  in  154  Wis.  97,  142  N.  W.  271, 
L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B,  877. 

3  0  The  presumption  of  dependency  does  not  arise  where  the  woman  living 
with  the  workman  at  the  time  of  his  death  as  his  wife  is  in  fact  not  his  le- 
gal wife  because  of  the  existence  of  a  prior  undissolved  marriage.  Rossi  v. 
Standard  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  307.  Where  the  mother  of  an  illegiti- 
mate child  is  actually  living  with  the  father  of  the  child  as  his  wife,  and  ac- 
tually wholly  dependent  upon  him,  and  it  is  provided  that  such  child  is  con- 
clusively presumed  dependent  only  in  cases  of  "there  being  no  surviving 
parent,  member  of  the  family  of  such  emploj'6,"  such  mother,  living  in  illicit 
relations  with  the  employe,  is  not  a  member  of  his  family,  and  therefore  not 
considered  a  dependent,  within  the  meaning  of  subsections  (a),  (3),  and  (c)  of 
section  19  of  the  Act.  Bustamente  v.  Gate  City  Ice  &  Precooling  Co.,  2  Cal. 
I.  A.  C.  Dec.  918. 

31  Holleron  v.  Hill,  2  Cal.  I.  A.  C.  Dec.  289.  Where  at  the  time  of  the  death 
of  an  injured  employ^  his  wife  is  not  living  with  him,  and  for  a  long  time 
prior  had  received  no  contributions  to  her  support  from  him,  the  dependency 
of  the  wife  is  not  established.  Rossi  v.  Standard  Oil  Co.,  2  Cal.  I.  A.  C.  Dec. 
307.  Total  dependency  of  a  wife  upon  her  husband  at  the  time  of  his  death 
is  not  established  where,  because  of  his  prior  desertion  of  her,  she  is  not 
living  with  him  at  that  time.  Avery  v.  Pacific  Gas  &  Electric  Co.,  2  Cal.  I. 
A.  C.  Dec.  311.  Where  a  husband  has  been  residing  away  from  his  wife  for 
twelve  years  in  a  foreign  country,  she  was  not  living  with  him,  within  the 
meaning  of  subdivision  (a),  1.  of  section  19  of  the  Workmen's  Compensation 
Act,  and  the  extent  of  her  dependency  is  a  matter  to  be  proven  by  evidence. 
Reis  V.  Standard  Portland  Cement  Co.,  2  Cal.  I.  A.  C.  Dec.  869.  Where  the 
husband  and  wife  are  living  separate  and  apart,  and  he  is  killed  by  Indus- 


§  81  wokkmen's  compensation  262 

not  being  supported  by  the  husband, ^^  or  where  their  living  apart 
is  voluntary  ^^  and  without  justifiable  cause  on  the  part  of  the 
vv^ife.  Under  the  express  provisions  of  the  Massachusetts  Act,  a 
wife  living  apart  from  her  husband  for  justifiable  cause  is  entitled 

trial  accident,  there  can  be  no  presumption  of  entire  dependency  of  tlie  wife, 
and  the  facts  must  establish  the  dependency,  if  any.  Bristol  v.  Gartlaud, 
1  Cal.  I.  A.  C.  Dec.  632. 

32  Where  a  husband  and  wife  had  lived  apart  for  several  years,  and  she 
had  worked  for  her  own  support,  to  which  he  contributed  a  part,  they  were 
not  living  together,  so  as  to  entitle  her  to  compensation  under  the  conclusive 
presumption  that  a  wife  living  with  her  husband  is  dependent  upon  him, 
though  they  had  occasionally  spent  a  few  days  together.  (St.  1911,  c.  751, 
as  amended  by  St.  1914,  c.  70S,  §  3)  In  re  Newman's  Case,  222  Mass.  5G3,  111 
N.  E.  359,  L.  R.  A.  1916C,  1145. 

A  widow  of  a  deceased  employ^,  who  had  separated  from  him  prior  to  his 
death,  and  who  was  living  apart  from  him  and  earning  her  living  without 
receiving  any  aid  from  him,  is  not  entitled  to  a  death  benefit.  She  cannot 
claim  the  benefit  of  the  conclusive  presumption  of  dependency  under  sec- 
tion 19  (a)  1  of  the  Workmen's  Compensation,  Insurance,  and  Safety  Act, 
because  she  was  not  living  with  hina  at  the  tune  of  his  death.  Delgado  v. 
California  Portland  Cement  Co.,  1  Cal.  I.  A.  C.  Dec.  436. 

A  wife  who  is  living  apart  from  her  husband,  following  a  vocation  in  an- 
other state,  which  was  her  means  of  livelihood  prior  to  her  marriage,  cannot 
be  said  to  be  wholly  dependent  upon  him  for  her  support,  within  the  mean- 
ing of  the  Workmen's  Compensation  Law,  and  on  his  death  entitled  to  maxi- 
mum compensation  from  his  employer.  Finn  v.  Detroit,  Mt.  Clemens  &  Ma- 
rine City  Ry.,  Mich.  Wk.  Comp.  Cases   (1916)  222. 

An  employe  was  killed,  leaving  a  widow  whom  he  married  in  South  Wales 
in  1877.  He  was  a  native  of  Wales,  and  left  his  wife  in  1896,  and  came  to 
America,  in  1900  contracting  a  bigamous  marriage  with  a  woman  with  whom 
he  lived  and  whom  he  supported  until  the  day  of  his  death,  she  having  no 
knowledge  of  his  former  marriage  and  believing  herself  to  be  his  lawful  wife. 
He  had  contributed  nothing  toward  the  support  of  his  first  wife  since  before 
the  time  of  his  bigamous  marriage.  The  Commission  held  that  his  lawful 
wife  was  not  dependent  upon  him  for  support  at  the  time  of  his  death.  In 
re  Elizabeth  A.  Jones,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  187. 

33  Where  the  workman  and  his  wife  were  voluntarily  living  apart  at  the 
time  of  his  death,  each  earning  a  living,  the  conclusive  presumption  of  total 
dependency  of  a  wife  upon  a  husband  ''with  whom  she  lives"  at  the  time  of 
his  death  does  not  arise.  (St.  1911,  e.  751,  pt.  2,  §  7,  cl.  "a")  In  re  Nelson, 
217  Mass.  467,  105  N.  E.  357. 


263  PERSONS   ENTITLED  TO   COMPENSATION  §    81 

to  compensation,^*  The  "justifiable  cause"  need  not  be  such  cause 
as  will  entitle  her  to  a  divorce;  it  may  be  ill-treatment  or  miscon- 
duct of  a  lesser  degree.^^  But  a  wife  cannot  be  said  to  be  living- 
apart  from  her  husband  for  justifiable  cause  where  there  has  been 
no  failure  of  marital  duty  on  his  part.^®  Thus,  where  a  husband 
and  wife  separate  by  mutual  consent,  and  such  separation  is  jus- 
tifiable because  he  is  not  earning  enough  to  support  his  family,  but 
it  appears  that,  though  at  the  time  of  his  death  his  earnings  had 
so  increased  that  he  was  amply  able  to  support  his  family,  she  still 
continued  to  live  away  from  him  by  mutual  agreement,  she  was  not 
entitled  to  compensation  as  a  dependent.  Her  living  apart  at  the 
time  of  his  death  was  not  for  justifiable  cause.^''  The  wife  and  child 
of  a  deceased  workman,  who  were  both  living  apart  from  him  at 
the  time  of  his  death,  are  not  conclusively  presumed  to  have  been 
wholly  dependent  on  him  for  support,  but  that  question  is  to  be 
determined  by  the  evidence  of  the  fact  as  it  existed  at  the  time  of 
the  injury.^^ 

The  provision  of  the  California  Act  "that  the  following  shall  be 
conclusively  presumed  to  be  wholly  dependent  for  support  upon 

3  4  In  re  Newman's  Case,  222  Mass.  563,  111  N.  E.  359,  L.' R.  A.  1916C,  1145. 
St.  1911,  c.  751,  pt.  2,  §  7,  cl.  "a,"  was  amended  by  St.  1914,  c.  70S,  §  7,  cl. 
"a,"  by  a  provision  that,  if  at  tlie  time  of  the  husband's  death  the  Indus- 
trial Board  shall  find  that  the  wife  was  living  apart  for  justifiable  cause  or 
because  he  had  deserted  her,  she  is  conclusively  presumed  to  be  wholly  der 
pendent  on  her  husband.  In  re  Gallagher,  219  Mass.  140,  106  N.  E.  55S;  In 
re  Fierro's  Case,  223  Mass.  378,  111  N.  E.  957. 

3  5  In  re  Newman's  Case,  222  Mass.  563,  111  N.  E.  359,  L.  R.  A.  1916C,  1145. 
This  decision  finds  support  in  Lyster  v.  Lyster,  111  Mass.  327;  Watts  v. 
Watts,  160  Mass.  464,  468,  36  N.  E.  479,  23  L.  R.  A.  187,  39  Am.  St.  Rep.  509 ; 
Rev.  Laws,  c.  153,  §  33. 

3  6  In  re  Newman's  Case,  222  Mass.  563,  111  N,  E.  359,  L.  R.  A.  1916C,  1145; 
Mayhew  v.  Thayer,  8  Gray  (Mass.)  172;  Sturbridge  v.  Franklin,  160  Mass. 
149,  35  N.  E.  069 ;  Watts  v.  Watts,  160  Mass.  464,  36  N.  E.  479,  23  L.  R.  A. 
187,  39  Am.  St.  Rep.  509. 

37  In  re  Newman's  Case,  222  Mass.  563,  111  N.  E.  359,  L.  R.  A.  1916C,  1145. 

3  8  In  re  Bentley,  217  Mass.  79,  104  N.  E,  432,  4  N.  C,  C.  A.  559. 


§  81  workmen's  compensation  264 

deceased  employe:  1.  A  wife  upon  a  husband  with  whom  she  was 
living  at  the  time  of  his  death.  2.  A  husband  upon  a  wife  upon 
whose  earnings  he  is  partially  or  wholly  dependent  at  the  time  of 
her  death" — does  not  prevent  a  husband  and  wife  from  being  de- 
pendent partially  or  wholly  upon  the  earnings  of  a  child.  The  con- 
clusive presumption  referred  to  operates  only  where  the  deceased 
employe  is  the  husband  or  wife,  and  not  where  the  employe  is  the 
son  or  daughter  of  the  dependents.  In  the  latter  case  dependency 
is  determined  in  accordance  with  the  fact,  as  the  fact  may  be  at 
the  time  of  the  death. ^° 

Under  the  Iowa  Act  it  is  immaterial  that  the  surviving  wife  was 
a  wage-earner  and  helping  to  support  herself  at  the  time  of  the 
injury. *•*  She  is  entitled  to  compensation  if  she  was  married  to 
the  deceased  at  the  time  of  the  injury  and  had  not  deserted  him 
without  fault  on  his  part.*^ 

Under  the  Washington  Act  a  wife  and  children,  defined  to  be  de- 
pendents, are  conclusively  presumed  to  be  dependent.*^  In  con- 
struing and  applying  this  Act,  a  divorced  man  who  is  paying  ali- 
mony is  considered  single.*^ 

In  a  case  under  the  Wisconsin  Act  it  was  held  that,  where  there 
has  been  no  actual  separation  between  husband  and  wife  in  the  na- 
ture of  an  estrangement,  they  may  be  said  to  be  "living  together," 
though  they  are  not  actually  dwelling  together,**  and  that  the  fact 

3  9  (Wk.  Comp.  Act,  §  19,  subds.  [a],  [b])  Cannon  v.  Original  Mining  &  Mill- 
ing Co.,  1  Cal.  I.  A.  C.  Dec.  278. 

4  0  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.   (1015)  p.  30. 

41  (Code  Supp.  1913,  §  2477ml6  [c]  [1])  Id. 

42  (Wk.  Comp.  Act  Wash.  §  3)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  6. 
4  3  (Wk.  Comp.  Act  Wash.  §  5)  Opinion  Atty.  Gen.  May  16,  1912. 

44  Northwestern  Iron  Co.  v.  Industrial  Commission  of  Wis.,  154  Wis.  97, 
142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B,  877. 

The  relation  of  husband  and  wife,  having  once  existed,  is  presumed  to  con- 
tinue.   Id. ;  State  ex  rel.  Coffey  v.  Chittenden,  112  Wis.  569,  88  N.  W.  587. 


265  PERSONS   ENTITLED  TO   COMPENSATION  §    81 

that  husband  and  wife  had  been  separated  for  more  than  three 
years,  she  remaining  in  their  native  country  while  he  was  here,  did 
not  create  a  presumption  that  they  were  not  living  together,  where 
the  evidence  showed  that  the  marital  relations  continued  without  a 
break.*^  The  court  in  an  opinion  by  Judge  Kerwin  said:  "Proof 
of  total  dependency  is  dispensed  with  under  the  statute,  where  the 
husband  and  wife  are  'living  together'  at  the  time  of  the  death  of 
the  injured  employe.  It  seems,  therefore,  quite  obvious  that  the 
Legislature  intended  by  the  use  of  the  words  to  include  all  cases 
where  there  is  no  legal  or  actual  severance  of  the  marital  rela- 
tion, though  there  may  be  physical  separation  of  the  parties  by 
time  and  distance.  The  'living  together'  contemplated  by  the  stat- 
ute, we  think,  was  intended  to  cover  cases  where  no  break  in  the 
marriage  relation  existed,  and  therefore  physical  dwelling  together 
is  not  necessary,  in  order  to  bring  the  parties  within  the  words  'liv- 
ing together.'  There  must  be  a  legal  separation,  or  an  actual  sep- 
aration in  the  nature  of  an  estrangement,  else  there  is  a  'living  to- 
gether' within  the  meaning  of  the  statute.  This  seems  to  be  the 
reasonable  and  practical  construction  of  the  law,  and  the  one  which 
we  think  the  Legislature  intended.  If  the  law  should  receive  the 
construction  that  there  must  be  physical  dwelling  together  in  order 
to  satisfy  the  statute,  it  is  plain  that  the  purpose  of  the  law  would 
be  in  many  cases  defeated,  because  in  many  cases  the  spouse  may 
be  absent  from  home  for  long  intervals,  although  there  be  no  break 
in  the  marriage  relation,  no  estrangement,  and  no  intent  to  sepa- 
rate or  sever  the  existing  relations  or  obligations  created  by  the 
marriage  contract.  *  *  *  There  seems  to  be  no  solid  reason 
why  an  absence  of  a  month,  or  a  year,  or  less,  should  require  a 
different  construction  of  the  words  'living  together'  than  an  absence 
of  three  years  and  three  months,  or  more.  The  question  does  not 
turn  on  time  or  distance,  but  upon  the  nature  and  character  of  the 

45  Northwestern  Iron  Co.  v.  Industrial  Commission  of  Wis.,  154  Wis.  97. 
142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B,  877. 


§  81  workmen's  compensation  266 

absence  and  the  intention  of  the  parties  respecting  it.  Intent  is  an 
important  element  in  determining  the  nature  of  absence."  *^ 

Where  the  evidence  in  an  action  under  the  New  Jersey  Act  shows 
that  a  deceased  workman,  when  at  work,  contributed  a  substantial 
part  of  his  earnings  toward  the  support  of  his  wife  and  daughter, 
and  that  he  and  his  wife  were  not  living  in  a  state  of  legal  sepa- 
ration, the  presumption  of  dependency  was  not  rebutted,  though 
it  further  appeared  that  he  did  not  work  steadily,  was  inclined  to 
dissipate,  did  not  live  at  home  all  the  time,  and  that  his  wife's  po- 
sition was  not  very  satisfactory.*'' 

The  question  of  intent  is  an  important  factor  in  determining 
whether  the  parties  were  living  together.  This  is  ordinarily  a 
question  of  fact.**  However,  what  constitutes  "living  together," 
where  the  facts  are  undisputed  and  no  conflicting  inferences  can 
be  drawn  from  the  evidence,  is  a  question  of  law  for  the  court.*^ 

§  82.     Parent  and  child 

Where  there  is  a  direct  legal  obligation  to  support,  as  in  the  case 
of  a  father  to  his  minor  children,  coupled  with  the  reasonable  prob- 
es Northwestern  Iron  Co.  v.  Industrial  Commission  of  Wis.,  154  Wis.  97, 
142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B,  877,  supported  by  Ex 
parte  Gilmore,  3  Eng.  Com.  B.  967;  A¥illiams  v.  Williams,  122  Wis.  27,  99 
N.  W.  431 ;  Thompson  v.  Thompson,  53  Wis.  153,  10  N.  W.  166 ;  INIiller  v.  Sov- 
ereign C.  W.  of  W.,  140  Wis.  505,  122  N.  W.  1126,  28  L.  R.  A.  (N.  S.)  178,  133 
Am.  St.  Rep.  1095. 

4  7  Taylor  v,  Seabrook,  87  N.  J.  Law,  407,  94  Atl.  399. 

4  8  Northwestern  Iron  Co.  v.  Industrial  Commission  of  Wis.,  154  Wis.  97, 
142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B,  877,  supported  by  Hoff 
V.  Hackett,  148  Wis.  32,  134  N.  W.  132. 

Whether  the  parties  were  living  together  was  a  question  of  fact  to  be  tried 
and  determined  by  the  Commission.  Northwestern  Iron  Co.  v.  Industrial 
Commission  of  Wis.,  supra ;  Travelers'  Ins.  Co.  v.  Hallauer,  131  Wis.  371,  111 
N.  W.  527.  Where  the  deceased  employe  was  a  foreigner,  and  his  wife  was 
yet  in  a  foreign  country,  and  he  occasionally  sent  her  money,  the  question 
whether  they  were  living  together  was  one  of  fact.  (St.  1911,  §  2394 — 10, 
subsec.  3)  Northwestern  Iron  Co.  v.  Industrial   Commission  of  Wis.,  supra. 

4  9  Northwestern  Iron  Co.  v.  Industrial  Commission  of  Wis.,  supra. 


267  PERSONS   ENTITLED  TO   COMPENSATION  §    82 

ability  of  such  oblig-ation  being  fulfilled,  dependency  is  established, 
even  though  no  support  was  in  fact  being  furnished  at  the  time  of 
the  workman's  death. ^^  The  law  does  not  limit  dependency  of 
minor  children  living  apart  from  their  parents  to  cases  where  actual 
support  was  being  furnished  or  contributions  made,  as  such  a  rule 
would  in  many  instances  exclude  children  from  the  benefits  of  a 
law  that  was  clearly  intended  for  their  protection. ^^ 

The  Massachusetts  Act  should  be  interpreted  broadly  in  harmony 
with  its  main  aim  of  providing  support  for  those  dependent  upon  a 
deceased  employe.  Under  a  provision  thereof  that  "a  child  or 
children  under  the  age  of  eighteen  years  (or  over  that  age  but 
physically  or  mentally  incapacitated  from  earning)  shall  be  con- 
clusively presumed  to  be  wholly  dependent  upon  the  parent  with 
whom  he  is  or  they  are  living  at  the  time  of  the  death  of  such  par- 
ent, there  being  no  surviving  dependent  parent,"  the  child  of  an 
employe  by  a  former  wife,  who  is  presumed  to  be  dependent,  is 
conclusively  presumed  to  be  wholly  dependent,  because  there  is, 
as  to  it,  no  surviving  dependent  parent.  Children  of  the  deceased, 
who  are  children  of  the  widow,  are  not  conclusively  presumed  to 
be  dependent,  because  as  to  them  there  is  a  surviving  parent.^- 
This  conclusive  statutory  presumption  is  clearly  conditioned  on  the 
nonexistence  of  a  surviving  dependent  parent."^  The  word  "par- 
ent" means  the  lawful  father  or  mother  by  blood,  and  not  a  step- 
father or  stepmother,  or  any  one  standing  in  loco  parentis. 

Under  the  Ohio  Act  there  is  no  presumption  that  the  father  or 
mother  of  an  unmarried  grown  son,  residing  with  them,  is  in  any 

50  Malzac  v.  Brule  Timber  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  330. 

51  Id. 

5  2  Coakley  v.  Coakley,  216  Mass.  71,  102  N.  E.  930,  Ann.  Cas.  191oA,  S67,  4 
N.  C.  C.  A.  508. 

5  3  In  re  Employers'  Liability  Assur.  Corporation,  215  Mass.  497,  102  N.  E. 
697.  "The  provisions  of  6  Edw.  VII,  c.  5S,  §  13,  as  to  the  dependents  enti- 
tled to  payments,  are  wholly  different  from  those  of  our  own  Act,  and  deci- 
sions of  the  English  courts  have  no  bearing  on  the  case  at  bar."     Id. 


§  83  workmen's  compensation  268" 

degree  dependent  upon  him  for  support/*  nor  is  there  any  presump- 
tion that  a  child  over  sixteen  years  of  age  is  dependent  upon  its 
father  for  support.®^  Whether  a  woman  whose  husband  is  living 
is  dependent  in  any  degree  for  support  on  her  grown  son  is  a  ques- 
tion of  fact.^° 

§  83.    California 

Under  the  California  Act  there  is  no  conclusive  presumption  that 
nonresident  parents  are  dependent  on  the  deceased  workman, 
whether  they  are  thus  dependent  being  a  question  of  fact." 
The  only  legal  obligation  from  which  dependency  may  be  found  to 
exist  as  a  conclusive  presumption  of  law  is  that  of  a  parent  at  the 
time  of  his  death  for  the  maintenance  of  a  minor  child,  there  being 
no  dependent  parent  surviving.^*  Nonresident  children  under 
eighteen  years  of  age  receiving  support  from  their  father  in  Cal- 
ifornia,  being  within  this  rule  of  presumption,  are   conclusively 

5  4  In  re  Joseph  Hora,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  173. 

5  5  In  re  Maude  M.  Hughes,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  148. 
Although  a  son  may  be  living  with  his  father  at  the  time  of  the  latter's  death, 
if  the  son  be  over  16  years  of  age,  there  is  no  presumption  that  he  was  de- 
pendent upon  the  father  for  support.  White  v.  Scioto  Land  Co.,  vol.  I,  No.  7, 
Bui.  Ohio  Indus.  Com.  p.  114. 

5  6  In  re  Emma  Hoffman,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  41. 

5  7  (Wk.  Comp.  Act  [St.  1913,  p.  289],  §  19a)  Garcia  v.  Indus.  Accident  Com. 
of  Cal.,  171  Cal.  57,  151  Pac.  741. 

5  8  Prichard  v.  American  Beet  Sugar  Co.,  2  Cal.  I.  A.  C.  Dec.  341.  TMiere  a 
divorce  decree  gave  the  custody  of  a  minor  child  to  the  mother,  and  obligated 
the  father  to  pay  $30  a  month  alimony  for  support  of  the  mother  and  the 
child,  the  child  was  conclusively  presumed  to  be  wholly  dependent  for  sup- 
port upon  the  father,  though  up  to  the  time  of  his  accidental  death  in  his 
employment  the  father  made  no  payments  of  alimony.  Mitchell  v.  Crichton, 
2  Cal.  I.  A.  C.  Dec.  1005.  Where  a  deceased  employ§  leaves  a  minor  child, 
the  issue  of  himself  and  a  woman  living  with  him  as  his  wife,  but  to  whom 
he  was  not  married,  and  the  child  is  living  with  him  at  the  time  of  his  death 
and  being  legally  entitled  to  maintenance  by  him,  such  child  is  conclusively 
presumed  to  be  wholly  dependent  on  him.  Bustamente  v.  Gate  City  Ice  & 
Precooling  Co.,  2  Cal.  I.  A.  C.  Dec.  918. 


269  PERSONS   ENTITLED  TO   COMPENSATION  §    84 

presumed  to  be  dependent,  if  the  law  of  Califoriiia  makes  enforce- 
able against  such  father  claims  for  maintenance  furnished  the  chil- 
dren in  the  other  state. ^'^  But  where  an  employe  takes  into  his 
family  a  minor  child  not  being  related  to  himself  or  wife,  and  no 
adoption  proceedings  are  had,  and  the  employe  deserts  his  family, 
and  for  several  months  before  his  death  makes  no  payments  for 
their  support,  and  is  killed  by  industrial  accident  without  resuming 
such  payments,  the  child  is  not  a  dependent.  Such  child  cannot 
claim  any  conclusive  presumption  given  by  the  Act,  as  the  deceased 
was  not  a  parent  legally  liable  for  its  support,  nor  can  it  claim  under 
the  section  relating  to  dependency  in  fact,  as  there  was  no  depend- 
ency in  fact  at  the  time  of  the  death. '^''  Where  a  minor  daughter 
has  been  awarded  to  the  mother  by  a  divorce  decree,  without  any 
order  being  made  for  the  child's  support,  the  father  is  not  respon- 
sible for  such  support,  and  hence  there  is  no  presumption  of  the 
dependency  of  the  child  on  the  father.®^ 

§  84.     Proof  of  dependency 

In  the  absence  of  the  operation  of  any  statutory  presumption, 
the  burden  of  showing  the  facts  necessary  to  warrant  payment  of 
compensation  rests  upon  the  dependents  as  much  as  it  does  on  the 
plaintiff  in  any  proceeding  at  law.  The  dependents  must  do  more 
than  show  a  state  of  facts  equally  consistent  with  no  right  to  com- 
pensation as  with  such  right.    They  can  no  more  prevail,  if  factors 

B9  Holleron  v.  Hill,  2  Cal.  I.  A.  C.  Dec.  2S9.  Where  a  parent  residing  in 
California  is  legally  bound  for  the  support  of  his  minor  child  by  the  law  of 
the  foreign  state  where  it  resides,  such  law  is  enforceable  in  California,  the 
child  is  conclusively  presumed  to  be  totally  dependent  upon  him  for  support. 
Rossi  V.  Standard  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  307.  Minor  children,  living  in 
Oklahoma,  for  whose  support  their  father,  living  in  California,  is  legally  lia- 
ble, are  conclusively  presumed  wholly  dependent  on  him.  Avery  v.  Pacific 
Gas  &  Electric  Co.,  2  Cal.  I.  A.  C.  Dec.  311. 

6  0  Wk.  Comp.  Act,  §  19,  subds.  (a),  (b) ;  Delgado  v.  California  Portland 
Cement  Co.,  1  Cal.  I.  A.  C.  Dec.  436. 

«i  Morse  v.  Royal  Indemnity  Co.,  1  Cal.  I.  A.  C.  Dec.  53. 


§  84  workmen's  compensation  270 

necessary  to  support  the  claim  are  left  to  surmise,  conjecture,  guess, 
or  speculation,  than  can  a  plaintiff  in  an  ordinary  action  of  tort 
or  contract.  A  sure  foundation  must  be  laid  by  a  preponderance 
of  the  evidence  in  support  of  the  claim  before  the  dependents  can 
succeed.  The  elements  that  need  to  be  proven  are  quite  different 
from  those  of  the  ordinary  action  at  law  or  suit  in  equity ;  but,  so 
far  as  these  elements  are  essential,  they  must  be  proved  by  the 
same  degree  of  probative  evidence.  Of  course  this  does  not  mean, 
as  was  said  by  Lord  Loreburn,  "that  he  must  demonstrate  his 
case.  It  only  means  if  there  is  no  evidence  in  his  favor  upon  which 
a  reasonable  man  can  act,  he  will  fail."  ^^    On  the  question  of  proof 

62  (St.  1911,  c.  751)  In  re  Sponatski,  220  Mass.  526,  lOS  N.  E.  466,  L.  R.  A. 
1916A,  333;  quotation  from  Marshall  v.  Owners  of  Steamship  Wild  Rose, 
[1910]  A.  C.  4S6. 

The  burden  of  proving  dependency  rests  on  one  claiming  compensation  as  a 
dependent.  In  re  Fierro's  Case,  223  Mass.  378,  111  N.  E.  957.  The  burden 
was  on  the  widow  of  a  deceased  employe,  where  she  sought  compensation,  to 
show  that  the  employe's  service  was  such  as  to  entitle  her  to  compensation, 
and  that  he  was  not  merely  a  casual  employe.  This  burden  did  not  shift. 
(St.  1911,  c.  751,  pt.  5,  §  2,  as  amended  by  St.  1914,  c.  70S,  §  13)  In  re  King, 
220  Mass.  290,  107  N.  E.  959. 

Claims  for  compensation  by  alleged  children  of  a  deceased  w'orkman  will 
be  disallowed,  in  the  absence  of  substantial  proof  of  paternity.  Angelucci 
V.  H.  S.  Kerbaugh,  Inc.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  12,  p.  16. 

Sufficiency  of  proof. — Testimony  of  a  wife,  who  had  been  separated  from 
her  husband,  who  was  killed  by  accident,  that  she  had  received  regular 
monthly  contributions  for  her  support,  w'hich  testimony  was  contradictory 
and  entirely  unsupported,  and  conflicted  with  testimony  of  his  sister-in-law 
to  the  effect  that  for  the  past  eight  or  nine  months  he  had  been  out  of  work* 
and  unable  to  pay  for  his  board,  was  insufficient  to  prove  dependency.  Lewis 
V.  Heafey,  2  Cal.  I.  A.  C.  Dec.  492. 

Burden  of  proof  of  death. — The  hurden  of  proof  is  upon  the  applicant  to 
establish  by  competent  testimony  the  fact  of  the  death  of  the  employe  as  a 
condition  precedent  to  receiving  the  death  benefit.  Circumstantial  evidence  is 
sufficient  where,  as  in  this  case,  it  is  impossible  to  establish  the  fact  of  death 
by  production  of  the  body.  Shea  v.  Western  Grain  &  Sugar  Products  Co., 
2  Cal.  I.  A.  C.  Dec.  550. 

Proof  of  marriage. — The  fact  that  a  man  and  woman  lived  together  for  ten 
months  is  not  evidence  that  they  were  married.  Fife  Coal  Co.,  Ltd.,  v. 
Wallace  (1910)  2  B.  W.  C.  C.  2&4,  Ct.  of  Sess.    But  in  Pappiani  v.  Wiiite  Oak 


271  PERSONS   ENTITLED  TO   COMPENSATION  §    84 

to  establish  the  fact  of  dependency,  it  has  been  held  that,  where  a 
son  who  had  been  giving  his  father  substantial  money  contribu- 
tions was  killed  by  accident,  the  fact  that  the  father  supported  or 
helped  to  support  a  crippled  brother  was  not  conclusive  evidence  of 
his  nondependence,  and  he  was  in  fact  partially  dependent,"^  but 
that  the  mere  fact  that  a  father  receives  money  from  a  son  and 
expends  it  is  not  alone  sufficient  to  establish  dependency.^*  Evi- 
dence that  deceased  gave  his  wages  to  his  father,  and  that  such 
wages  were  devoted  to  the  support  of  the  family,  was  sufficient 
to  support  a  finding  that  the  members  of  the  family  were  actual 
dependents.®^  Where  claimants  for  compensation  under  the  Wash- 
ington Act  reside  abroad,  a  sworn  statement  of  dependency  must 
be  made  before  a  magistrate,  whose  authority  to  take  deposition 
is  to  be  attested  by  an  American  consul.®''  In  dealing  with  death 
benefit  claims  of  nonresident  dependents,  the  California  Commis- 
sion requires  at  least  some  of  the  testimony  as  to  contributions 
for  support  to  be  corroborated  by  documentary  evidence  of  remit- 
tances.®^ Where  the  parents,  residing  in  Turkey,  applied  for  a 
death  benefit,  basing  their  claim  on  their  own  uncorroborated  and 
indefinite  testimony  and  on  hearsay  evidence,  there  being  no  direct 
evidence  of  any  specific  amount  of  money  sent  at  any  particular 
time  for  their  support,  a  death  benefit  was  denied.®^    But  it  does  not 

Crushed  Stone  Co.,  1  Conn.  Comp.  Dec.  619,  where  all  direct  evidence  of  claim- 
ant's marriage  to  deceased  had  been  destroyed,  but  there  was  abundant 
testimony  that  she  had  lived  with  the  deceased  as  his  wife  for  a  number  of 
years,  and  appeared  in  papers  concerned  with  the  adoption  of  children  as  his 
wife,  the  Commissioner  held  that  she  was  shown  to  have  been  the  wife  of 
the  deceased. 

63  Legget  &  Sons  v.  Burke  (1902)  4  F.  693,  Ct.  of  Sess.  (Act  of  1S97). 

64  Main  Colliery  Co,  v.  Davies,  2  W.  C.  C.  108. 

6  5  Havey  v.  Erie  R.  Co.,  87  N.  J.  Law,  444,  95  Atl.  124. 

66  (Wk.  Comp.  Act  Wash.  §  3)  Rulings  ^^lash.  Indus.  Ins.  Com.  1915,  p.  6. 

67  Claudio  V.  California  Street  Cable  Ry.  Co.,  8  Cal.  I.  A.  C.  Dec.  7. 
«8  Andrew  v.  Alaska  Packers'  Ass'n,  2  Cal,  I.  A.  C.  Dec.  770. 


§  84  workmen's  compensation  272 

necessarily  preclude  recovery  that  the  dependents  can  furnish  no 
exact  account  of  the  workman's  contributions  to  their  support.^® 
For  example,  want  of  evidence  of  the  exact  amount  of  the  work- 
man's contributions  to  the  support  of  his  parent  will  not  prevent 
recovery  of  compensation,  where  it  conclusively  appears  that  the 
parent's  entire  support  was  received  from  the  workman/"  In  a 
Wisconsin  case,  where  it  appeared  that  the  father  and  mother  had 
become  more  or  less  incapacitated  through  age  and  disease,  and 
that  without  the  aid  of  their  children  they  would  not  have  been 
able  to  have  managed  the  farm  and  provided  for  their  own  sup- 
port in  their  customary  manner  of  living,  the  Commission  con- 
cluded that  the  deceased  son  contributed  a  portion  of  his  earnings 
to  his  parents/^ 

6  9  Bradford  v.  Union  Hollywood  Water  Co.,  2  Cal.  I.  A.  C.  Dec.  792. 

7  0  Deunehy  v.  Flinn  &  Tracy,  1  Cal,  I.  A.  C.  Dec.  302. 

71  Pliska  V.  Hatton  Lumber  Co.,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  95. 


273  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION  DUB 


CHAPTER  V 

CIRCUMSTANCES  UNDER  WHICH  COMPENSATION 
BECOMES  DUE 

Section 

85-100.  Article  I. — Injury  and  accident. 
85-91.  Division  I. — Accident. 

92-96.  Division    IT. — Personal    injury. 

97-98.  Division  III. — Diseases. 

99-100.  Division  IV.— Proof. 

101-126.  Article  II. — Arising  out  of  and  in  course  of  employment. 
101-104.  Division  I. — In  general. 

105-114.  Division  II. — Arising  in  the  course  of  employment. 

115-125.  Division  III. — Arising  out  of  employment. 

126.  Division  IV.— Proof. 

127-137.  Article  III.— Cause  and  result. 

138-139.  Article  IV. — Occupational  diseases. 


ARTICLE  I 

INJURY  AND  ACCIDENT 

Division  I. — Accident 
Section 

85.  Necessity,  definition,  and  characteristics. 

86.  Unexpected  untoward  event — Extraneous  or  not. 

87.  Intentional  act  of  another. 

88.  Industrial  accidents. 

89.  Voluntary  act  in  emergency. 

90.  Fortuitous  event. 

91.  Question  of  law  and  fact. 

Division  II. — Personal  Injuet 

92.  Definition. 

93.  Federal  Act. 

94.  Physical   violence   or    not. 

95.  Nervous  shock. 

96.  Hernia, 

Division  III. — Diseases 

97.  Diseases   compensable   as   injuries. 

98.  Previously   existing  diseases. 

Division  IV. — Pboof 

99.  Proof   of   accident. 
100.     Proof  of  injury. 

HON.COMP. — 18 


§  85  workmen's  compensation  274 

Division  I. — Accident 

§  85.     Necessity,  definition,  and  characteristics 

A  comparison  of  the  various  American  Compensation  Acts  dis- 
closes that  some  do  not  make  "accident"  a  condition  to  the  right 
to  recover  compensation,^  w^hile  others,  following  the  English  Act,- 

1  The  federal  Act,  and  those  of  West  Virginia,  Washington,  Kentucky, 
Louisiana,  Iowa,  Oliio,  Massachusetts,  Texas,  and  Connecticut,  omit  the  word 
■'accidental"  in  modifying  "injury."  Yume  v.  Knickerboclier  Portland  Cement 
Co.,  3  N.  Y.  St.  Dep.  Rep.  353. 

Under  the  Massachusetts  Workmen's  Compensation  Act  it  is  not  required 
that  the  injury  be  also  an  accident,  differing  in  this  respect  from  the  Eng- 
lish Act  and  being  more  liberal  to  the  employe.  The  element  of  accident  was 
not  intended  to  be  imported  into  the  IMassachusetts  Act.  In  re  Hurle,  217 
Mass.  223,  1(M  N.  E.  336,  L.  R.  A.  1916A,  279.  Ann.  Cas.  1915C,  919.  The 
name  "Industrial  Accident  Board,"  which  is  the  administrative  body  created 
by  part  3,  is  a  mere  title,  and  cannot  fairly  be  treated  as  restrictive  of  its 
duties.  Id.  "The  standard  established  by  the  Massachusetts  Workmen's 
Compensation  Act  as  the  ground  for  compensation  is  simply  the  receiving  of 
'personal  injury  arising  out  of  and  in  the  course  of  the  employment.  This 
standard  is  materially  different  from  that  of  the  English  Act  and  of  the 
Acts  of  some  of  the  states  of  this  nation.  That  standard  is  'personal  injury 
by  accident,'  both  in  the  Act  of  1897  and  1906.  See  60  &  61  Vict.  1S97,  c.  37, 
§  1  (1) ;  6  Edw.  VII,  1906,  c.  58,  §  1  (1).  The  difference  between  the  phrase- 
ology of  our  Act  and  the  English  Act  in  this  respect  cannot  be  regarded  as 
immaterial  or  casual.  The  English  Act  in  its  present  form  was  passed 
several  years  before  ours.  It  was  known  to  the  Legislature  which  enacted 
the  Massachusetts  statute  and  was  followed  as  to  its  general  frame  and  in 
many  important  particulars.  Gould's  Case,  215  Mass.  480,  486,  102  N.  E. 
693,  Ann.  Cas.  1914D,  372 ;  McNicol's  Case,  215  Mass.  497,  499,  102  N.  E.  697, 
L.  R.  A.  1916A,  306.  This  difference  must  be  treated  as  the  result  of  de- 
liberate design  by  the  General  Court,  after  intelligent  comprehension  of  the 

2  The  English  Act  of  1897  was  entitled :  "An  act  to  amend  the  law  with 
respect  to  compensation  to  workmen  for  accidental  injuries  suffered  in  the 
course  of  their  employment."  The  body  of  the  act  provided  that:  "If  in 
any  employment,  to  which  this  act  applies,  personal  injury  by  accident 
arising  out  of  and  in  the  course  of  employment  is  caused  to  any  workman, 
his  employer  shall  be  liable." 

"It  is  not  enough  to  say  that  the  injury  was  caused  by  the  employment, 
but  there  must  be  the  further  element  of  accident."  Cozens-Hardy,  M.  R., 
in  Broderick  v,  London  County  Council   (1909)  1  B.  W.  C.  C.  219,  C.  A. 


275  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    85 

prescribe  not  only  that  there  shall  be  a  personal  injury,  but  that 
the  injury  shall  be  by  accident.^     The  word  "accident"  refers  to 

limitation  expressed  by  the  words  of  the  English  Act.  The  freer  and  more 
comprehensive  words  in  the  Massachusetts  Act  must  be  given  their  natural 
construction,  with  whatever  added  force  may  come  from  the  intentional  con- 
trast in  phraseology  with  the  English  Act.  The  'personal  injury  by  acci- 
dent,' which  by  the  English  Act  is  made  the  prerequisite  for  the  award  of 
financial  relief,  is  narrower  in  its  scope  than  'personal  injury.'  "  In  re  Mad- 
den, 222  Mass.  487,  111  N.  E.  379. 

It  is  intended  that  all  injuries  shall  be  compensated  for  unless  willfully 
incurred;  disease  only  being  excluded.  (Wk.  Comp.  Act,  §  3)  Stertz  v.  In- 
dustrial Insurance  Commission  of  Washington  (Wash.)  158  Pac.  256.  The 
use  of  the  word  "accident"  in  the  administrative  portions  of  the  Act  is  for 
brevity  only,  and  it  does  not  operate  to  detract  from  or  vary  the  meaning 
of  the  words  "fortuitous  event."    Id. 

In  Blackall  v.  Winchester  Repeating  Arms  Co.,  1  Conn.  Comp.  Dec.  1S3,  it 
was  held  that  it  is  not  necessary  under  the  Connecticut  Act  that  the  injury 
arise  by  accident.  The  words  "by  accident,"  found  in  the  English  Act,  are 
omitted  from  this  statute. 

Within  the  language  of  the  federal  Act,  an  employ^  may  be  injured  with- 
out having  suffered  a  definite  accident.    In  re  Clark,  Op.  Sol.  Dept.  of  L.  188. 

3  As  "accident"  is  the  controlling  word  in  the  Michigan  Act,  Massachusetts 
decisions  relative  to  the  element  of  accident  have  little,  if  any,  bearing  on 
the  Michigan  Act.  In  Adams  v.  Acme  White  Lead  &  Color  Wks.,  182 
Mich.  157,  148  N.  W.  485,  L.  R.  A.  1916A,  283,  the  court,  in  an  opinion  by 
Judge  Stone,  says:  "Our  attention  has  been  called  to  the  Massachusetts 
Act,  which  differs  in  many  respects  from  our  Act.  The  whole  scope  of  the 
Act  seems  to  be  to  provide  for  compensation  for  personal  injuries  received 
in  the  course  of  employment.  In  many  instances  where  the  word  'accident' 
occurs  in  our  statute  the  word  'injury'  is  used  in  the  Massachusetts  statute. 
It  is  true  that  the  Massachusetts  board  is  termed  an  'Industrial  Accident 
Board,'  but,  aside  from  the  use  of  the  word  'accident'  in  that  title,  we  are 
unable  to  find  the  word  in  the  body  of  the  act,  except  in  two  instances  in  sec- 
tion 18  of  part  3,  which  provides  for  the  keeping  of  a  record  and  making  a 
report  by  the  employer  in  case  of  accident.  This  may  be  said  not  to  be  very 
controlling;  but,  in  our  judgment,  it  has  to  do  with  the  inquiry  as  to  the 
scope  of  the  Act.  We  are  \inable  to  follow  those  cases  as  authority  under  our 
statute."  Followed  in  Robbins  v.  Original  Gas  Engine  Co.  (Mich.)  157  N. 
W.  437. 

Even  though  an  injury  arises  out  of  and  in  the  course  of  the  employment, 
there  can  be  no  recovery,  unless  it  is  an  "accident,"  within  the  purview  of 
the  Act.    Walther  v.  American  Paper  Co.   (N.  J.  Sup.)  98  Atl.  264. 

The  benefits  of  the  California  Act  are  limited  to  cases  of  injury  arising 
from  accident.    McDonald  v.  Dunn,  2  Cal.  I.  A.  C.  Dec.  71. 


§  85  workmen's  compensation  270 

the  cause  of  the  injury,*  and  is  here  used  in  its  ordinary  and  popu- 
lar sense  as  denoting-  an  unlocked  for  mishap  or  an  untoward  event 
which  is  not  expected  or  designed^  by  the  workman  himself,^  a 

4  In  re  Hart,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  IS ;  (Rev.  St  1913,  § 
3693  [b])  Johanseu  v.  Union  Stockyards  Co.,  99  Neb.  328,  156  N.  W.  511. 

5  Adams  v,  A<;me  White  Lead  &  Color  Wks.,  182  Mich.  157,  148  N.  W.  485, 
L.  R.  A.  1916A,  283 ;  Walker  v.  Lilleshall  Coal  Co.,  [1900]  1  Q.  B.  4SS ;  Rob- 
hins  V,  Original  Gas  Engine  Co.  (Mich.)  157  N.  W.  437;  Moore  v.  Lehigh  Val- 
ley R.  Co.,  169  App.  Div.  177,  154  N.  Y.  Supp.  620;  Bryant  v.  Fissell,  84  N. 
J.  Law,  72,  86  Atl.  458 ;  Clayton  &  Co.  v.  Hughes  [1910]  A.  C.  242,  26  T.  L.  R. 
359;  Feutoa  v.  Thorley  &  Co.  (1903)  5  W.  C.  C.  6. 

The  words  "accident"  and  "accidental"  in  the  Compensation  Acts  are 
used  in  their  popular  and  ordinary  sense,  and  mean  happening  by  chance, 
unexpectedly  taking  place,  not  according  to  the  usual  course  of  things,  or  not 
as  expected.    Robbins  v.  Original  Gas  Eugine  Co.,  supra. 

"Accident"  means  an  unexpected  or  unforeseen  event,  happening  suddenly 
and  violently,  with  or  without  human  fault,  and  producing  at  the  time  ob- 
jective symptoms  of  an  injury.  (Wk.  Comp.  Act  [Laws  1913,  c.  198]  §  52 
[b])  Johansen  v.  Union  Stockyards  Co.,  99  Neb.  328,  156  N.  W.  511. 

In  Mutual  Ace.  Ass'n  v.  Barry,  131  U.  S.  100,  121,  9  Sup.  Ct.  755,  762  (33 
L.  Ed.  60),  the  term  "accidental,"  as  used  in  an  accidental  insurance  policy, 
is  defined  as  used  "in  its  ordinai*y  popular  sense,  as  meaning  'happening  by 
chance,  unexpectedly  taking  place,  not  according  to  the  usual  course  of 
things,  or  not  as  expected' ;  that  if  a  result  is  such  as  follows  from  ordinary 
means,  voluntarily  employed,  in  a  not  unusual  or  unexpected  way,  it  cannot 
be  called  a  result  effected  by  accidental  means ;  but  that  if,  in  the  act  which 
precedes  the  injury,  something  unforeseen,  unexpected,  unusual,  occurs 
which  produces  the  injury,  then  the  injury  has  resulted  through  accidental 
means." 

The  popular  and  ordinary  definition  of  the  word  "accident,"  and  not  the 

6  Trim  Joint  District  School  v.  Kelly  (1914)  7  B.  W.  C.  C.  274,  H.  L.,  and 
(1913)  6  B.  W.  C.  C.  921,  C.  A.  "An  occurrence,  I  think,  is  unexpected,  if  it 
is  not  expected  by  the  man  who  suffers  by  it,  even  though  every  man  of  com- 
mon sense  who  knew  the  circumstances  would  think  it  certain  to  happen." 
Lord  Macnaghten,  in  Clover,  Clajton  &  Co.  v.  Hughes  (1910)  3  B.  W.  C.  C. 
275,  H.  L.  For  70  years  in  England  the  word  "accident"  has  been  publicly 
and  descriptively  used  as  incluslA'e  of  occurrences  intentionally  caused  by 
others.     Trim  Joint  District  School  v.  Kelly,  supra. 

When  the  act,  as  far  as  the  injured  employe  is  concerned,  is  an  unforeseen, 
unlooked-for  mishap,  unprovoked  and  uninvited,  the  resultant  injury  is  occa- 
sioned by  an  "accident."  Walther  v.  American  Paper  Co.  (N.  J.  Sup.)  98 
Atl.  264. 


277  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUE  §    85 

physiological  injury  as  the  result  of  the  work  he  is  engaged  in/  an 
unusual  effect  of  a  known  cause/  a  casualty/    It  implies  that  there 

stricter  definition  used  in  construing  accident  insurance  policies,  is  to  be 
used  in  compensation  cases,  and  an  employe  who,  while  assisting  in  the  loading 
of  lumber  on  a  truck,  either  slipped  or  in  some  manner  wrenched  his  back, 
and  fell  down,  sustained  ai  accident  within  the  meaning  of  the  Act.  South- 
western Surety  Ins.  Co.  v.  Pillsbury  (Cal.  Sup.)  158  Pac.  762. 

An  injury  is  accidental  if  it  is  "unforeseen,"  "without  design,"  "happening 
without  the  concurrence  of  the  injured  party,"  "unintended  or  unexpected" 
by  the  employe,  or  "a  risk  of  his  occupation."  Johnston  v.  Mountain  Com- 
mercial Co.,  1  Cal.  I.  A.  C.  Dec.  100.  Accidental  means  are  those  which 
produce  effects  which  are  not  their  natural  and  probable  consequence.  An 
effect  which  is  a  natural  and  probable  consequence  of  an  act  or  course  of 
action  is  not  an  accident,  but  one  which  is  not  a  natural  and  probable  con- 
sequence of  an  act  or  course  of  action  is  produced  by  accidental  means  and 
is  an  accident.    Eep.  Nev.  Indus.  Com.  1913-14,  p.  25. 

An  accident  arises  from  something  unforeseen,  unexpected,  or  unusual,  and 
is  not  the  natural  result  of  ordinary  means,  voluntarily  employed,  in  a  not 
unusual  or  unexpected  way.  In  re  Clark,  Op.  Sol.  Dept.  of  L.  188.  An  ef- 
fect which  does  not  ordinarily  follow  the  use  of  familiar  means,  and  which 
cannot  reasonably  be  anticipated,  is  an  accident.  Id.  To  constitute  h.n  in- 
jury within  the  federal  Act,  it  will  suffice  if  an  element  of  accident  clearly 
appears,  or  if  the  injury  is  of  a  type  which,  in  the  interpretation  of  statutes 
of  similar  scope  and  purpose,  has  been  accepted  as  properly  included  in  the 
class  comprehensively  known  as  accidental  injuries.  In  re  Irving,  Op.  Sol. 
Dept.  of  L.  249. 

"The  word  'accident'  has,  when  used  in  this  statute,  long  ceased  to  have 

7  Stewart  v.  Wilsons  and  Clyde  Coal  Co.,  Ltd.  (1902)  5  F.  at  page  122. 
The  decth  of  an  employe  of  a  mill  run  by  water  power,  who  was  drowned  in 
attempting  to  clean  racks  which  protected  the  intake  flume,  was  an  accident, 
within  the  Act.  Boody  v,  K.  &  C.  Mfg.  Co.,  77  N.  H.  208,  90  Atl.  859,  L.  R. 
A.  1916A,  10,  Ann.  Cas.  1914D,  1280. 

A  log  roller,  who  had  his  toe  frozen  on  an  exceptionally  cold  day  while 
rolling  logs  in  the  woods,  suffered  an  accidental  injury  (Linck  v.  Millard.  4 
N.  Y.  St.  Dep.  Rep.  385),  as  also  did  an  employe  who  froze  his  fingers  while 
harvesting  ice  when  the  temperature  was  30  degrees  below  zero  (Cole  v. 
Callahan  &  Sperry,  4  N.  Y.  St.  Dep.  Rep.  348). 

8  Ismay,  Imrie  &  Co.  v.  Williamson  (1909)  1  B.  W.  C.  C.  at  page  235. 
"Accidental"   means   happening  by   chance   or   unexpectedly    taking  place, 

not  according  to  the  usual  course  of  events.  Naud  v.  King  Sewing  Mach. 
Co.,  95  Misc.  Rep.  676,  159  N.  Y.  Supp.  910. 

9  See  note  9  on  following  page. 


§  85  workmen's  compensation  278 

was  an  external  act  or  occurrence  which  caused  the  injury  or  death. 
It  contemplates  an  event  not  within  one's  foresight  and  expecta- 
tion resulting-  in  a  mishap  causing  injury  to  the  employe.  Such  an 
occurrence  may  be  due  to  purely  accidental  causes,  or  may  be  due 
to  oversight  and  negligence.^"     It  may  be  due  to  carelessness,  not 

the  meaning  the  man  in  the  street  would  attribute  to  it."  Sir  Samuel  Walk- 
er, L.  C,  in  Sheerin  v.  Clayton  &  Co.,  Ltd.,  [1910]  2  Ir.  R.  110.  In  Heusey  v. 
White,  [1900]  1  Q.  B.  481,  the  language  of  an  earlier  case  was  approved  where 
it  was  said :  "I  think  the  idea  of  something  fortuitous  and  unexpected  is  in- 
volved in  both  words,  'peril'  or  'accident.' "  "The  word  'accident'  is  to  be 
taken  in  its  popular  ordinary  sense.  It  denotes  or  includes  any  unexpected 
personal  injury  resulting  to  the  workman  in  the  course  of  his  employment 
from  any  unlooked-for  mishap  or  occurrence."  Lord  Shand,  in  Fenton  v. 
Thorley  &  Co.,  Ltd.  (1903)  5  W.  C.  C.  1,  H.  L.  (Act  of  1897). 

9  In  Bystrom  Bros.  v.  Jacobson,  162  Wis.  ISO,  155  N.  W.  919,  Judge  Mar- 
shall says :  "The  term  'accident'  as  used  in  the  Workmen's  Compensation 
Act  *  *  *  is  susceptible  of  being  given  such  scope  that  one  would  hardly 
venture  to  define  its  boundaries.  Courts  have  indulged  in  very  general 
statements  in  regard  to  it,  but  have  not  worked  out  any  very  definite  guide." 

An  "accident"  is  a  casualty — something  out  of  the  usual  course  of  events, 
and  which  happens  suddenly  and  unexpectedly,  and  without  any  design  on 
the  part  of  the  person  injured.  Richards  v.  Travelers'  Ins.  Co.,  89  Cal.  170, 
26  Pac.  762,  23  Am.  St.  Rep.  455 ;  Price  v.  Occidental  Life  Ins.  Co.,  169  Cal. 
800,  147  Pac.  1175 ;  Southwestern  Surety  Ins.  Co.  v.  Pillsbury  (Cal.  Sup.)  158 
Pac.  762. 

An  "accident"  is  an  unforeseen  event,  occurring  without  the  will  or  design 
of  the  person  whose  mere  act  causes  it;  an  unexpected,  unusual,  or  undesign- 
ed occurrence ;  the  effect  of  an  unknown  cause,  or,  the  cause  being  known, 
an  unprecedented  consequence  of  it ;  a  casualty.  Adams  v.  Acme  White 
Lead  &  Color  Wks.,  182  Mich.  157,  148  N.  W.  485,  L.  R.  A.  1916A,  283; 
Black's  Law  Dictionary. 

10  Vennen  v.  New  Dells  Lumber  Co.,  161  Wis.  370,  154  N.  W.  640,  L.  R. 
A.  1916A,  273.  The  broad  meaning  attributable  to  the  word  "accident,"  and 
which  is  called  for  by  the  spirit  of  the  Workmen's  Compensation  Act,  was 
adopted  by  this  case.  The  court  said:  "The  term  'accidental,'  as  used  in 
compensation  laws,  denotes  something  unusual,  unexpected,  and  undesigned. 
The  nature  of  it  implies  that  it  was  an  external  act  or  occurrence  which 
caused  the  personal  injury."  The  contracting  of  typhoid  fever  by  an  employe 
by  his  drinking  impure  water  furnished  by  the  employer  was  held  to  satis- 
fy all  requirements  of  that  definition. 

The  term  "accident,"  when  used  in  Workmen's  Compensation  Acts,  should 
be  taken  in  a  broad  sense  as  including  a  violent  straining  of  the  muscles, 


279  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    85 

willful,  to  fatigue,  or  to  miscalculation  of  the  effects  of  voluntary 
action.^^  It  is  something  capable  of  being  assigned  to  a  particular 
time  and  place  and  of  which  notice  can  be  given.^^    This  has  been 

resulting  in  a  rupture  or  other  bodily  hurt  to  an  employ^  from  physical  over- 
exertion in  performing  his  work.  Bystrom  Bros.  v.  Jacobson,  1C2  Wis.  ISO, 
155  N.  W.  919. 

"The  words  'by  accident'  are  *  •  *  introduced  parenthetically  as  it 
were  to  qualify  the  word  'injury,'  confining  it  to  a  certain  class  of  injuries, 
and  excluding  other  classes,  as,  for  instance,  injuries  by  disease  or  injuries 
self-inflicted  by  design."     Fenton  v.  J.  Thorley  &  Co.,  Ltd.  [1003]  A,  C.  443. 

11  "An  examination  of  cases  arising  principally  upon  accident  insurance 
policies,  some  of  which  are  collected  in  a  note  to  Lehman  v.  Great  Western 
Accident  Ass'n,  42  L.  R.  A.  (N.  S.)  562,  discloses  that  in  the  opinions  which 
seem  to  be  best  considered  the  distinction  is  observed  between  the  means  by 
which  an  injury  is  produced  and  the  result  of  the  producing  cause  or  causes. 
It  is  not  sufficient  that  there  be  an  unusual  and  unanticipated  result ;  the  means 
must  be  accidental— involuntary  and  unintended.  There  must,  too,  be  some 
proximate  connection  between  accidental  means  and  the  injurious  result. 
It  is  doubtful,  however,  if,  in  applying  the  Michigan  statute,  its  general  pur- 
pose being  considered,  the  court  should  exactly  follow  the  rules  suggested 
and  applied  in  the  cases  referred  to.  The  statute  seems  to  contemplate  that 
an  accidental  injury  may  result  by  mere  mischance;  that  accidental  inju- 
ries may  be  due  to  carelessness,  not  willful,  to  fatigue,  and  to  miscalculation 
of  the  effects  of  voluntary  action."  Bobbins  v.  Original  Gas  Engine  Co. 
(Mich.)  157  N.  W.  437. 

12  "  'Accident'  is  something  of  which  notice  can  and  must  be  given."  Cos- 
ens-Hardy,  L.  J.,  in  Steel  v.  Cammell,  Laird  &  Co.,  Ltd.  [1905]  2  K.  B.  p.  23S. 
"The  accident  must  be  something  which  is  capable  of  being  assigned  to  a 
particular  date,  and  which  is  in  the  popular  and  ordinary  sense  an  accident." 
Collins,  M.  R.,  in  Marshall  v.  East  Holywell  Coal  Co.,  Gorley  v.  Backworth 
Collieries  (1905)  7  W.  C.  C.  19  (Act  of  1897).  "A  workman  cannot  recover 
compensation  under  the  Act  unless  he  can  satisfy  the  court  that  there  is  a 
particular  time,  place,  and  circumstance  in  which  the  injury  by  accident 
happened.  Unless  he  can  do  that,  he  must  fail."  Cozens-Hardy,  M.  R.,  in 
Martin  v.  Manchester  Corporation  (1912)  5  B.  W.  C.  C.  259,  C.  A.  "It  seems 
to  me  that  all  these  interpretations  of  the  word  point  to  some  particular 
event  or  occurrence  which  may  happen  at  an  ascertainable  time,  and  which 
is  to  be  distinguished  from  the  necessary  and  ordinary  effect  upon  a  man's 
constitution  of  the  work  in  which  he  is  engaged  day  by  day.  So  defined,  the 
word  'accident"  seems  to  me  to  exclude  the  anticipated  and  necessary  conse- 
quence of  continuous  labor."  Lord  Kinnear,  in  Coe  v.  Fife  Coal  Co.,  Ltd. 
(1910)  2  B,  W.  C.  C.  8,  Ct.  of  Sess. 


§  85  workmen's  compensation  280 

held,  however,  not  to  mean  capable  of  being  assigned  to  some  par- 
ticular moment  or  hour  of  time.^^  n  follows  that  there  is  no  "in- 
jury by  accident"  within  a  Workmen's  Compensation  Act,  when 
no  specific  time  or  occasion  can  be  fixed  upon  as  the  time  an  al- 
leged accident  occurred.'*  A  pre-existing  weakness  or  disease  will 
not  prevent  the  injury  from  being  the  result  of  an  accident  if  the 
accident  is  the  immediate  cause  of  the  injury.'^ 

An  "accidental  injury"  is  clearly  distinguished  from  an  injury  in 
the  nature  of  a  vocational  disease  sustained  in  the  course  of  an  em- 
ployment where  from  the  inherent  nature  of  the  work  disease  is 
likely  to  be  contracted.'* 

13  "It  would  be  unreasonable  to  assume  that  the  court  means  that  the 
disease  or  incapacity  must  necessarily  be  assigned  to  some  particular  moment 
or  hour  of  time.  Its  language  with  respect  to  time  and  place  is  to  be  con- 
strued reasonably.  If,  in  a  period  of  say  twelve  hours,  or  possibly  one  day, 
there  can  be  established  certain  fortuitous  and  unexpected  causes  peculiar 
to  the  employment  which  have  produced  the  disease  or  incapacity,  then  the 
case  may  be  compensable."  Linnane  v.  ^tna  Brewing  Co.,  1  Conn.  Comp. 
Dec.  677  (appeal  pending  in  superior  court). 

i4Liondale  Bleach,  Dye  &  Paint  Works  v.  Biker,  85  N.  J.  Law,  426,  SJ) 
Atl.  929. 

Where  lead  poisoning  contracted  by  a  workman  could  not  be  traced  to  any 
definite  time,  but  was  the  cumulative  effect  of  inhalation  of  the  enamel 
powder,  extending  over  a  considerable  period  of  time,  it  was  not  an  accidental 
injury  within  the  meaning  of  the  Act.  Derkinderen  v.  Bundle  Mfg.  Co.,  Rep. 
Wis.  Indus.  Com.  1914-15,  p.  16. 

15  A  rupture  due  to  an  unusual  strain  in  lifting  a  heavy  weight  was  an 
accidental  injury,  though  the  rupture  would  not  have  occurred  but  for  a 
pre-existing  physical  weakness.  Bobbins  v.  Original  Gas  Co.  (Mich.)  157  N. 
W.  437. 

Where  a  hack  driver  was  injured  from  being  thrown  from  his  seat  while 
he  was  helpless  from  dizziness,  due  to  disease,  his  fall  was  an  "accident." 
(Wk.  Comp.  Act,  Pub.  Laws  1911-12,  c.  831,  art.  1,  §  1)  Carroll  v.  What  Cheer 
Stables  Co.  (B.  I.)  96  Atl.  208. 

16  Naud  V.  King  Sewing  Mach.  Co.,  95  Misc.  Bep.  676,  159  N.  Y.  Supp.  910. 
As  to  occupational  diseases,  see  §  138  et  seq.,  post. 

Medical  evidence  showing  that  the  applicant's  falling  of  the  womb  was 
directly  caused  by  straining  and  heavy  lifting  done  in  the  course  of  her 
employment,  no  disease  being  present,  though  the  injury  was  made  possible 


281  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  ,  §    86 

§  86.     Unexpected  untoward  event — Extraneous  or  not 

The  unexpected  untoward  event  may  arise  out  of  efforts  being 
put  forth  by  the  workman  himself,  as  where  he  strains  his  back  in 
lifting/^  or  is  incapacitated  by  sunstroke  while  working-  in  an  ex- 
posed position ;  ^^  it  may  arise  from  something  wholly  extraneous 
to  the  workman,  as  where,  while  at  work  on  a  building,  he  is  struck 
by  an  iron  bar  which  another  workman  causes  to  fall  from  an  upper 
story/"  or  it  may  arise  partly  from  his  efforts  and  partly  from 
something  extraneous  thereto.-**  No  doubt,  the  ordinary  accident 
is  associated  with  something  external,  the  bursting  of  a  boiler,  or 
an  explosion  in  a  mine,  for  example.  But  it  may  be  really  from 
the  man's  own  miscalculation,  such  as  tripping  and  falling:  Or  it 
may  be  due  both  to  internal  and  external  conditions,  as  if  a  seaman 

by  laceration  at  the  time  of  tbe  birtli  of  a  child  30  years  before,  showed  that 
the  injury  was  caused  by  an  accident.  Loustalet  v.  Metropolitan  Laundry 
Co.,  1  Cal.  I.  A.  C.  Dec.  318. 

17  A  workman,  who  in  putting  a  derailed  coal  hutch  back  upon  the  rails 
strains  his  back  in  so  doing,  is  injured  by  accident.  Stewart  v.  Wilsons  and 
Clyde  Coal  Co.,  Ltd.  (1002)  5  F.  120,  Ct.  of  Sess. 

18  Where  a  seaman  was  incapacitated  by  sunstroke  while  painting  the  sides 
of  his  ship,  it  was  a  personal  injury  by  accident.  Morgan  v.  S.  S.  Zeuaida 
(Owners  of),  (1910)  2  B.  W.  C.  C.  19,  C.  A. 

Except  in  those  cases  where  the  sunstroke  was  due  to  an  exposure  peculiar- 
ly severe  because  of  the  nature  and  location  of  the  employment,  a  sunstroke 
received  under  ordinary  and  not  unnatural  conditions  should  be  treated  as 
an  illness  due  to  the  weakened  condition  of  the  employe  rather  than  as  a 
personal  injury.    Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  1915,  p.  26. 

19  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458. 

20  Where  a  lineman  in  the  employ  of  a  railroad  company  took  shelter  from 
a  violent  rainstorm  under  a  car  standing  on  a  switch,  and  on  the  car  being 
moved  was  struck  by  a  projection  thereof  and  fell,  so  that  his  legs  were  sev- 
ered by  the  wheels,  the  injury  was  accidental.  (Wk.  Comp.  Law,  §  10)  Moore 
V.  Lehigh  Valley  R.  Co.,  169  App.  Div.  177,  154  N.  Y.  Supp.  620.  It  was  a 
personal  injury  by  accident  where  a  dock  laborer,  who  was  unloading  bran 
containing  grit,  got  some  in  his  eye,  and,  rubbing  it,  caused  an  abrasion,  ne- 
cessitating the  removal  of  the  eye.  Adams  v.  Thompson  (1912)  5  B.  W.  C.  C 
19,  C.  A. 


§  86  workmen's  compensation  282 

were  to  faint  in  the  rigging  and  tumble  into  the  sea.  It  may  also 
be  something  going  wrong  within  the  human  frame  itself/^  such 
as  the  straining  of  a  muscle,  or  the  breaking  of  a  blood  vessel.  If 
that  occurred  when  he  was  lifting  a  weight,  it  would  be  properly 
described  as  an  accident.  So  rupturing  an  aneurism  when  tighten- 
ing a  nut  with  a  spanner  may  be  regarded  as  an  accident.^^  But 
where  a  fellow  employe,  at  the  request  of  an  employe  troubled  with 
pimples,  opens  a  pimple  in  an  unsanitary  manner,  causing  blood 
poisoning,  the  injury  does  not  result  from  an  accident.^^  It  has 
been  held  that  death  resulting  from  a  ruptured  artery  was  not  ac- 
cidental when  the  rupture  occurred  while  the  insured  was  reach- 

21  Where  an  employe  worked  continuouslj'  for  21  hours,  except  1%  hours 
off  for  meals,  during  which  time  he  had  to  climb  216  steps  three  different 
times,  besides  being  on  his  feet  most  of  the  time,  and  was  found  dead  in  his 
chair  in  a  saloon  a  half  hour  after  quitting,  death  being  due  to  angina  pec- 
toris, he  suffered  an  accident.  McMurray  v.  J.  J.  Little  &  Ives  Co.,  3  N.  Y. 
St.  Dep.  Rep.  395. 

22  Clover,  Clayton  &  Co.,  Ltd.,  v.  Hughes  (1910)  3  B.  W.  C.  C.  280. 

The  employs  was  working  on  a  construction  car  when  the  trolley  wire 
broke,  causing  the  boom  at  the  end  of  the  trolley  pole  to  strike  him.  This 
blow,  together  with  a  shock  of  electricity  from  the  wire,  incapacitated  him 
for  work  and  brought  on  a  condition  of  acute  nephritis  and  loss  of  vision. 
The  employ^  was  held  to  be  entitled  to  compensation.  Cooper  v.  Mass.  Em- 
ployes' Insur.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  573  (decision  of  Com.  of  Arb.). 

Where,  although  the  strain  was  received  while  in  the  performance  of  ap- 
plicant's ordinary  work,  it  was  the  result  of  an  extraordinary  exertion,  it 
should  be  classed  as  an  accident  within  the  meaning  of  the  Act.  Scott  v. 
What  Cheer  Coal  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  1.  But  hernia  occur- 
ring without  any  strain  and  without  the  elements  that  are  necessary  to  con- 
stitute an  accident  would  not  come  within  the  meaning  of  the  law.    Id. 

Rupture,  caused  by  a  strain  while  at  work,  is  an  "accident."  Poccardi  v. 
Public  Service  Commission,  75  W.  Va.  542,  84  S.  E.  242,  L.  R.  A.  1910A,  299. 

But  where  a  workman  was  found  to  be  suffering  from  hernia,  without  any- 
thing out  of  the  ordinary  having  happened,  the  disease  being  caused  by  con- 
tinued strain,  and  having  developed  gradually  and  without  any  sudden  strain 
or  overexertion,  there  was  no  "accident."  Lichtenberger  v.  Strack,  Rep.  Wis. 
Indus.  Com.  1914-15,  p.  13 ;  Reseberg  v.  Hamilton  Mfg.  Co.,  Rep.  Wis.  Indus. 
Com.  1914-15,  p.  14. 

53  Rebello  V.  Marin  County  Milk  Producers,  1  Cal.  I.  A.  C.  Dec.  87. 


283  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    87 

ing  from  a  chair  to  close  a  window,  did  not  slip  or  fall  or  lose  his 
balance,  and  nothing  unforeseen  occurred  except  the  bursting  of 
the  artery.^* 

§  87.     Intentional  act  of  another 

The  circumstance  that  the  injury  was  the  result  of  a  willful  or 
criminal  assault  by  another  does  not  exclude  the  possibility  of  in- 
jury by  accident.  An  injury  caused  by  the  attack  of  a  third  per- 
son may  be  accidental  so  far  as  the  injured  person  is  concerned. ^^ 

2  4Feder  v.  Iowa  State  Trav.  Men's  Ass'u,  107  Iowa,  538,  78  N.  Vv\  2."2, 
43  L.  R.  A.  693,  70  Am.  St.  Rep.  212. 

2  5  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac.  398;  West- 
ern Metal  Supply  Co.  v.  Pillsbury  (Cal.  Sup.)  156  Pac.  491. 

Injury  by  assault,  where  sucb  assault  arises  out  of  the  employment,  is  an 
injury  by  accident.  Rudder  v.  Ocean  Shore  Railroad  Co.,  1  Cal.  I.  A.  C.  Dec. 
209.  While  a  premeditated  simple  assault  does  not  fall  within  either  the 
commonly  accepted  or  the  legal  definition  of  accident,  it  is  the  clear  intent 
of  the  law  that  all  public  peace  officers,  as  public  employes,  are  entitled  to 
the  benefits  of  the  Act,  and  an  injury  by  assault  suffered  incidental  to  the 
employment  of  such  oQ3cer,  in  the  course  of  his  employment,  and  arising  out 
of  his  employment,  is  accidental.  Emmert  v.  Trustees  of  the  Preston  School 
of  Industry,  1  Cal.  I.  A.  C.  Dec.  17.  Where  a  newspaper  reporter  was  ordered 
by  his  employer  to  get  a  first  copy  of  the  newspaper  ofC  tlie  press  to  see  if 
the  makeup  was  correct,  and  was  forcibly  resisted  by  the  pressman,  the 
reporter  repeatedly  and  properly  attempting  to  do  as  he  was  instructed,  and 
then,  when  about  to  report  the  matter  to  his  superior,  and  as  a  consequence 
of  his  proper  efforts,  was  unexpectedly  and  without  other  provocation  as- 
saulted, such  assault  was  an  accident.  Brown  v.  Berkeley  Daily  Gazette,  2 
Cal.  I.  A.  C.  Dec.  844. 

Where  a  workman  was  injured  in  a  fight  with  two  Italians,  who  disliked 
him  because  he  had  taken  their  place  when  they  were  discharged  some  time 
before,  he  suffered  an  accident.  Hartnett  v.  Steen,  2  N.  Y.  St.  Uep.  Rep.  492 
(affirmed  1G9  App.  Div.  905,  153  N.  T.  Siipp.  1119,  and  216  N.  Y.  101,  110  N. 
E.  170).  An  assistant  foreman,  assaulted  by  two  workmen  whom  he  had  just 
reprimanded  for  not  doing  their  work  properly,  sustained  an  accident.  Yume 
V.  Knickerbocker  Portland  Cement  Co.,  3  N.  Y.  St.  Dep.  Rep.  353  (aflirmed  in 
169  App.  Div.  905,  153  N.  Y.  Supp.  1151). 

It  was  a  personal  injury  by  accident  where  an  unpopular  master  of  an  in- 
dustrial school  was  assaulted  in  pursuance  of  a  conspiracy  among  the  boys 
(Trim  Joint  District  School  v.  Kelly   [1914]  7  B.  W.  C.  C.  274,  H.  L.,  and 


§  88  workmen's  compensation  284 

An  injury  due  to  the  playful  act  of  a  coemploye  may  constitute  an 
accident.^*'  The  death  or  injury  of  an  employe  in  defending  his  em- 
ployer's place  of  business  from  robbery  is  accidental."  But  where 
a  brewing  company  agrees  to  furnish  its  employes  good  beer  to 
drink,  and  an  employe  is  injured  from  drinking  beer  poisoned  by 
his  fellow  workmen,  the  contract  does  not  make  the  employer  lia- 
ble for  compensation.  Even  though  he  intentionally  furnished  bad 
beer,  this  fact  would  render  him  liable  only  in  an  action  at  law,  and 
would  not  establish  an  industrial  accident.^^ 

§  88.     Industrial  accidents 

As  a  general  rule,  the  employer  is  not  liable  for  purely  industrial 
accidents  where  the  workman  has  not  brought  himself  within  the 
Act.^'^  The  usual  purpose  of  these  Acts  is  to  compensate  for  in- 
juries resulting  from  industrial  accidents  only,  and  not  for  occupa- 

[1913]  6  B.  W.  C.  C.  921,  C.  A.) ;  where  a  cashier,  who  was  carrying  wages  by 
train  to  a  colliery,  was  shot  and  robbed  (Nisbet  v.  Rayne  and  Burn  [101(y]  3 
B.  W.  C.  C.  507,  C.  A.)  ;  where  boys  dropped  a  stone  from  a  bridge  upon  an 
engine,  fatally  injuring  the  driver  (Challis  v.  London  &  Southwestern  Rail- 
way Co.  [1905]  7  W.  C.  C.  23,  C.  A.);  and  where  a  gamekeeper  on  duty  was 
attacked  by  poachers  and  injured  (Anderson  v.  Balfour  [1910]  3  B.  W.  C.  C. 
5SS,  C.  A.);  but  not  where  an  errand  boy  was  assaulted  by  his  employer,  a 
man  who  had  been  in  an  asylum  and  was  subject  to  fits  of  melancholia  (Blake 
V.  Head  [1912]  5  B.  W.  C.  C.  303,  C.  A.). 

20  Injury  to  an  eye  was  due  to  accident  where  the  employ^  while  in  the 
toilet  felt  something  strike  her  arm,  and  looked  through  a  crack  to  see  where 
the  article  had  come  from,  whereupon  a  girl  in  the  adjoining  toilet  thru.st 
some  scissors  through  the  crack  into  her  eye.  De  Fillipis  v.  Falkenberg,  170 
App.  Div.  153,  155  N.  Y.  Supp.  761. 

2  7  Johnston  v.  Mountain  Commercial  Co.,  1  Cal.  I.  A.  C.  Dec.  100.  That  a 
night  watchman  was  killed  through  the  willful  act  of  a  third  person  did  not 
prevent  his  death  from  being  accidental.  Western  Metal  Supply  Co.  v.  Pills- 
bury  (Cal.  Sup.)  15G  Pac.  491. 

An  assault  on  a  night  watchman  by  a  coemploye,  for  the  purpose  of  robbery, 
was  an  accident.    Walther  v.  American  Paper  Co.  (N.  J.  Sup.)  9S  Atl.  264. 

2  8  Koch  V.  Oakland  Brewing  &  Malting  Co.,  1  Cal.  I.  A.  C.  Dec.  373. 

2  9  Salus  V.  Great  Northern  Ry.  Co.,  157  Wis.  546,  147  N.  W.  1070. 


285  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUE  §    89 

tional  diseases.^"  The  determination  of  what  constitute  industrial 
accidents  consequently  becomes  important.  Loss  of  vision  by 
wood  alcohol  poisoning  is  an  industrial  accident,  rather  than  an  oc- 
cupational disease,  particularly  where  the  effect  of  the  wood  alcohol 
was  not  a  cumulative  and  gradual  destruction  of  the  optic  nerve, 
but  a  sudden  attack  precipitated  by  an  extraordinary  use  of  the 
liquid  just  before  the  eye  trouble  appeared.^^  Where  an  employe, 
after  working  two  weeks  in  snapping  and  stripping  string  beans  in 
a  cannery,  notices  a  blister  on  her  thumb,  which  within  two  or 
three  days  becomes  infected  and  very  painful,  subsequently  requir- 
ing the  amputation  of  the  thumb,  the  injury  is  due  to  accident,  and 
not  to  occupational  disease.  It  is  not  indispensable  that  the  ap- 
plicant be  able  to  swear  what  bean  pod  it  was  that  finally,  by  the 
friction  of  its  rough  surface  against  the  thumb,  made  a  hole  in  the 
skin,  but  sufficient  that  a  hole  was  made,  that  infection  entered,  and 
that  disability  was  caused  thereby.^^  Where  an  employe  fell  be- 
tween an  engine  and  tender  in  consequence  of  the  slippery  condi- 
tion of  the  apron  on  which  he  was  standing,  the  fall,  being  the  re- 
sult of  a  hazard  incident  to  his  employment,  was  held  to  be  a  com- 
pensable industrial  accident.^^ 

§  89.     Voluntary  act  in  emergency 

Injury  sustained  by  a  workman  in  voluntarily  doing  an  act  in 
emergency,  with  knowledge  of  the  risk  incurred,  may  constitute  in- 
jury by  accident.  Thus  when  a  workman  who  was  employed  on 
the  quay  side  voluntarily  went  down  into  the  hold  of  a  ship  to  res- 
cue a  fellow  workman  who  had  been  overcome  by  noxious  gas  was 
himself  suffocated,  it  was  a  personal  injury  by  accident.^* 

30  Federal  Rubber  Mfg.  Co.  v.  Havolic  (Wis.)  156  N.  W.  143. 
81  De  Witt  V.  Jacoby  Bros.,  1  Cal.  I.  A.  C.  Dec.  170. 
3  2  Pettit  V.  Mendenhall,  2  Cal.  I.  A.  C.  Dec.  212. 

33  (St.  1913,  §§  2394—1  to  2394—9.5)  Milwaukee  Coke  &  Gas  Co.  v.  Indus- 
trial Commission,  160  Wis.  247,  151  N.  W.  245. 

34  London  &  Edinburgh  Shipping  Co.  v.  Brown  (1905)  7  F.  4S8,  Ct.  of  Sess. 
(Act  of  1897), 


§  90  workmen's  compensation  286 

§  90.     Fortuitous  event 

The  Supreme  Court  of  Washington  held  that  hernia  due  to  an 
attempt  to  remove  a  heavily  loaded  truck  was  a  "fortuitous  event" 
within  a  provision  of  the  Compensation  Act  of  that  state  stipulat- 
ing- that  the  words  "injury"  or  "injured"  as  used  therein  "refer 
only  to  an  injury  resulting  from  some  fortuitous  event  as  distin- 
guished from  the  contraction  of  disease,"  and  said  in  an  opinion  by 
Judge  Morris:  "It  is  the  contention  of  the  Commission  that  these 
circumstances  do  not  disclose  that  the  injury  resulted  from  a 
'fortuitous  event,'  and  that  no  accident  occurred  which  produced 
the  injury,  contending  that,  inasmuch  as  respondent  did  not  slip 
or  fall,  nothing  struck  him,  and  nothing  happened  out  of  the  ordi- 
nary which  produced  the  rupture  or  hernia,  it  cannot  be  said  that 
the  hernia  resulted  from  some  fortuitous  event.  'Fortuitous'  is  de- 
fined as  'occurring  by  chance  as  opposed  to  design ;  coming  or  tak- 
ing place  without  any  cause  ;  accidental ;  casual ;'  and  a  fortuitous 
cause  is  said  to  be  'a  contingent  or  accidental  cause'  ^^  The  sus- 
taining of  an  injury  while  using  extreme  muscular  effort  in  push- 
ing a  heavily  loaded  truck  is  as  much  within  the  meaning  of  a 
fortuitous  event  as  though  the  injury  were  the  result  of  a  fall  or 
the  breaking  of  the  truck.  To  hold  with  the  Commission  that,  if 
a  machine  breaks,  any  resulting  injury  to  a  workman  is  within  the 
Act,  but,  if  the  man  breaks,  any  resulting  injury  is  not  within  the 
Act,  is  too  refined  to  come  within  the  policy  of  the  Act  as  an- 
nounced by  the  Legislature  in  its  adoption  and  the  language  of  the 
court  in  its  interpretation.  The  machine  and  the  man  are  within 
the  same  class  as  producing  causes,  and  any  injury  resulting  from 
the  sudden  giving  way  of  the  one,  while  used  as  a  part  of  any  in- 
dustry within  the  Act,  is  as  much  within  the  contemplation  of  the 
Act  as  the  other."  ^^     In  a  case  arising  out  of  the  British  Act,  it 

3B  Quotation  from  Standard  Dictionary. 

36  Zappala  v.  Industrial  Inc.  Commission,  82  Wash.  314,  144  Pac.  54,  L.  R. 
A.  1916A,  295. 


287  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    90 

was  held  that  an  internal  injury  caused  to  a  person  in  a  normal 
state  of  health  was  a  fortuitous  and  unforeseen  event,  where  he  sud- 
denly tore  several  fibers  of  the  muscles  of  his  back  while  lifting  a 
heavy  beam.^^  It  was  likewise  held  in  another  case  that  a  work- 
man in  his  master's  field,  who,  finding  that  the  grain  had  been  trod- 
den down  by  bullocks,  stooped  to  raise  it  and  sprained  his  left  leg, 
was  within  the  remedies  of  this  Act.  The  language  of  the  British 
Act  is  "personal  injury  by  accident  arising  out  of  and  in  the  course 
of  employment."  The  English  cases  make  no  distinction  between 
an  accident  and  a  fortuitous  event  as  used  in  some  acts ;  for  it  is 
said  in  the  case  last  mentioned,  in  answering  the  contention  there 
made  that  an  injury,  to  be  within  the  British  Act,  must  be  caused 
by  some  fortuitous  and  external  event,  that:  "The  word  'accident' 
is  a  popular  word  of  very  wide  meaning.  Originally  a  grammari- 
an's word,  it  has  been  used  from  Dr.  Johnson's  time  until  to-day  to 
mean  'that  which  happens  unforeseen,  casualty,  chance.'  For  four 
years  this  man  had  successfully  used  these  muscles  to  lift  this 
weight;  owing,  perhaps  to  carelessness,  perhaps  to  a  slip,  perhaps 
to  some  other  cause,  except  disease,  he  snaps  the  fibers  of  the 
muscles  that  had  always  successfully  done  the  work,  and  if  any  or- 
dinary person  had  been  asked  what  had  happened  to  him,  he  would 
have  said  that  the  man  had  had  an  'accident,'  and  I  think  the  word 
would  have  been  rightly  used.  To  me  it  is  the  same  as  if  he  had 
been  using  a  rope  strong  enough  for  the  purpose,  and  by  overstrain 
or  sudden  jerk  the  rope  had  snapped  and  the  beam  had  fallen  upon 
him.  That  would  be  an  accident.  In  one  case  the  work  is  done  by 
a  rope;  in  the  other,  by  a  set  of  muscles.  In  each  case  the  machin- 
ery is  normally  fit  for  the  work,  but  the  unexpected  happens,  the 
rope  or  muscle  snaps  and  there  is  an  accident.  To  my  thinking, 
there  is  in  the  word  'accident'  always  an  element  of  injury.  *  *  * 
As  to  the  word  'fortuitous,'  I  do  not  think  I  need  trouble  much 
about  it.     If  the  injury  were  caused  by  disease,  it  is  clear  that  the 

37  Boardman  v.  Whitworth,  3  W.  C.  C.  33. 


§  91  workmen's  compensation  288 

applicant  could  not  recover,  but  I  find  as  a  fact  that  the  man  was 
not  in  any  way  diseased.  Indeed,  it  was  not  seriously  contended 
that  he  was.  'Fortuitous'  means  'accidental,'  'casual,'  'happening 
by  chance;'  and  I  have  already  said  that,  in  my  opinion,  this  in- 
jury was  caused  by  an  accidental  and  fortuitous  event.  *  *  * 
In  determining  whether  the  injury  has  been  caused  by  an  accident 
or  not,  one  must  discriminate  between  that  which  must  occur  and 
that  which  need  not  necessarily  occur  in  the  course  of  the  employ- 
ment. If  the  thing  must  happen,  it  is  not  an  accident,  but  if  it 
need  not  happen,  then  there  is  the  fortuitous  element,  and  there  is 
an  accident."  ^*  Another  English  case  arose  out  of  these  circum- 
stances :  The  workman,  while  turning  a  wheel  attached  to  a  press, 
"suddenly  felt  something  which  he  describes  as  a  tear  in  his  in- 
side, and  upon  examination  it  was  found  that  he  was  ruptured. 
There  was  no  evidence  of  any  slip,  wrench,  or  sudden  jerk."  It 
was  held  below,  following  Hensey  v.  White,  2  W.  C.  C.  1,  that 
there  could  be  no  recovery  because  of  "an  entire  lack  of  the  for- 
tuitous element."  This  contention  was  overruled,  and  it  was  said 
that  the  word  "accident,"  as  used  in  the  British  Act,  was  used  in 
its  popular  ordinary  sense  as  denoting  an  unlooked  for  mishap  of 
an  untoward  event  which  is  not  expected  or  designed." 

§  91.     Question  of  law  and  fact 

Whether  an  injury  is  an  "accident"  is  a  mixed  question  of  law 
and  fact.*"  When  applied  to  ascertained  facts  it  is  a  question  of 
law." 

3  8  Purse  V.  Hayward,  85  L.  T.  .502, 

88  Fenton  v.  Thorloy  &  Co.,  5  W.  C.  C.  1. 

4  0  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458;  Roper  v.  Greenwood 
(1900)  83  L.  T.  471. 

41  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458;  Fenton  v.  Thornley  & 
Co.  (1903)  A.  C.  443,  19  L.  T.  R.  684. 


2S9  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUB  §    92 

Division  II. — Pe;rsonai.  Injury 

§  92,     Definition 

The  words  "personal  injury"  have  been  given  in  many  connec- 
tions a  comprehensive  definition.'*^  They  had  a  well-defined  mean- 
ing in  the  law  prior  to  the  passage  of  the  Compensation  Acts,  and, 
under  the  rule  that  words  of  common  and  approved  meaning  should 
be  given  such  meaning  in  the  construction  of  a  statute,  they  re- 
tain this  meaning  in  the  Compensation  Acts.**     They  include,  as 

42  In  re  Hurle,  217  Mass.  223,  104  N.  E.  336,  L.  R.  A.  1916A,  279,  Ann.  Cas. 
1915C,  919. 

43  In  re  Madden,  222  Mass.  487,  111  N.  E.  379.  In  this  case  tbe  court,  in 
discussing  a  construction  of  ttiese  words  as  used  in  the  Massachusetts  Act, 
said:  "It  is  argued  that  grave  economic  consequences  of  far-reaching  effect 
may  follow  from  the  Act  as  thus  construed.  It  is  said  that  persons  not  in 
good  health  may  be  altogether  excluded  from  employment,  to  their  severe 
hardship,  while  the  cost  of  conducting  commercial  and  industrial  enterprises 
may  become  prohibitively  large,  all  to  the  detriment  of  the  general  welfare 
and  of  the  financial  resources  of  the  commonwealth.  These  considerations 
are  of  great  public  moment.  But  these  factors  relate  to  legislative  questions, 
and  the  arguments  founded  on  them  are  distinctly  legislative  arguments. 
They  may  be  entitled  to  attention  and  deliberation  at  the  hands  of  the  legis- 
lative department  of  government.  In  the  present  forum  they  cannot  have 
decisive  significance,  even  if  it  were  plain  that  the  enumerated  consequences 
were  inevitable.  The  function  of  the  judicial  department  of  the  government  is 
simply  to  determine  whether  an  act  is  within  the  power  vested  by  the  Con- 
stitution in  the  Legislature,  and  then  to  enforce  it  according  to  its  true  mean- 
ing in  cases  as  they  arise.  While  the  consequences  to  which  a  particular 
construction  or  application  of  a  statute  would  lead  have  an  important  bear- 
ing in  determining  what  may  have  been  the  intent  of  the  Legislature  in 
using  words  of  doubtful  import  (Greene  v.  Greene,  2  Gray  [Mass.]  361,  364, 
61  Am.  Dec.  454),  they  cannot  control  a  plain  rule  of  positive  law  established 
by  clear  language  in  a  legislative  mandate.  The  words  'personal  injury' 
had  meaning  in  the  law  prior  to  the  passage  of  the  Workmen's  Compensation 
Act  sufliciently  definite  and  well  defined  clearly  to  include  the  kind  of  per- 
sonal harm  here  disclosed,  so  that  it  hardly  can  be  assumed  under  all  the 
circumstances  that  the  Legislature  used  them  in  a  different  or  unusually  con- 
stricted sense.  There  are  no  conditions  which  warrant  a  judicial  interpreta- 
tion of  the  words  'personal  injury'  in  the  Act  as  meaning  the  same  as  'per- 
sonal injury  by  accident,'  or  as  excluding  from  the  scope  of  'personal  injuries' 

HON.COMP. — 19 


§  92  workmen's  compensation  290 

used  therein,  whatever  lesion  or  change  in  any  part  of  the  system 
produces  harm  or  pain  or  a  lessened  faculty  of  the  natural  use  of 
any  bodily  activity  or  capability.**  Heat  prostration  sustained  in 
the  course  of  employment  is  an  "injury,"  within  the  meaning  of 
the  Compensation  Acts.*^  As  used  in  the  Nevada  Act,  the  words 
"injury"  or  "injured"  refer  to  an  event  or  mishap  not  expected  or 
designed/*' 

The  acceleration  or  aggravation  of  a  pre-existing  ailment  may  be 
a  personal  injury.*'^ 

§  93.     Federal  Act 

The  word  "injury"  is  used  comprehensively  in  the  federal  Act 
to  embrace  all  the  cases  of  incapacity  to  continue  the  work  of  the 

those  instances  where  a  diseased  physical  condition  may  have  invited,  or 
rendered  the  employe  unusually  susceptible  to,  'personal  injury.'  It  may  be 
that  the  Legislature  intended  a  more  narrow  field  than  actually  was  de- 
scribed by  the  words  used.  But,  if  that  be  so,  the  remedy  must  be  sought 
from  the  Legislature.  There  are  no  means  by  which  the  court  can  ascertain 
the  purpose  and  effect  of  a  statute,  except  from  the  words  used  when  given 
their  common  and  approved  meaning."  Bergeron,  Pet'r,  220  Mass.  472,  47-5, 
107  N.  E.  1007. 

4  4  Compensation  was  properly  allowed  for  permanent  incapacity  of  both 
legs  from  paralysis,  due  to  an  injury  to  the  spinal  cord,  though,  in  a  technical 
sense,  there  was  no  direct  injurj^  to  the  legs.  The  word  "injury,"  as  it  should 
be  construed  in  this  connection,  includes  whatever  lesion  or  change  in  any 
part  of  the  system  produces  harm  or  pain  or  a  lessened  faculty  of  the  natural 
use  of  any  bodily  activity  or  capability.  (St.  1911,  c.  751,  pt.  2,  §  11,  amended 
by  St.  1913,  c.  G96)  In  re  Burns,  21S  Mass.  8,  105  N.  E.  GOl,  Ann.  Cas.  1916A, 
787.  Where  an  employe,  after  carrying  a  heavy  bag  of  coal  and  while  reach- 
ing for  another,  falls  to  the  ground  in  a  dying  condition  in  consequence  of 
the  muscles  of  his  heart  being  overtaxed  by  his  exertion,  his  death  is  caused 
by  an  "injury"  within  the  meaning  of  the  Workmen's  Compensation  Act.  In 
re  Fisher,  220  Mass.  581,  108  N.  E.  361. 

An  unusual   exertion  or   strain,    resulting  in   incapacity   for   work,   is  an 

4  5  Ress  V.  Youngstown  Sheet  &  Tube  Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus. 
Com.  p.  194. 

46  Rep.  Nev.  Indus.  Com.  1913-14,  p.  25. 

47  Hartz  V.  Hartford  Faience  Co.,  90  Conn.  539,  97  Atl.  1020.    See  §  98,  post. 


291  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    93 

employment,  including  all  cases  where  as  a  result  of  the  employe's 
occupation  he  becomes  unable  to  carry  on  his  work.*^  Where  a 
bodily  affliction  is  not  the  result  of  a  gradual  process  or  slow  ac- 
cumulation of  trifling  hurts  or  of  a  constant  repetition  of  known  or 
injurious  effects,  but,  though  caused  without  definite  accident,  de- 
velops rapidly  and  is  recurrable  to  a  fixed  time,  and  is  neither  a 
necessary  result  nor  a  result  reasonably  to  be  feared,  it  is  an  injury 
within  the  federal  Act,  regardless  of  the  fact  that  it  is  the  natural 
result  of  surrounding  conditions.*^  But  a  disability  referable  to 
no  definite  accident  or  occurrence,  though  arising  in  the  course  of 
employment,  involving  chiefly  a  gradual  w^eakening,  wearing  out, 
or  breaking  down  of  the  employe,  is  not  an  injury  within  the  Act.^* 
An  employe  obeying  orders  of  his  superior  and  submitting  to  vac- 
cination, and  disabled  thereby,  is  injured  within  the  Act,^^  as  is  a 
plate  printer  following  his  usual  occupation  and  sustaining  a  sprain 
of  the  wrist  and  a  rupture  of  the  synovial  sac.^^  Frozen  feet  con- 
stitute an  injury.^^    An  injury  caused  by  a  strain  due  to  the  condi- 

injury  within  the  meaning  of  the  Compensation  Act.  Hackford  v.  Veeder  & 
Brown,  The  Bulletin,  N.  Y.,  vol.  1,  No.  8,  p.  10. 

4  8  In  re  Clark,  27  Op.  Atty.  Gen.,  Op.  Sol.  Dept.  of  L.  (1915)  200. 

4  9  In  re  Irving,  Op.  Sol.  Dept.  of  L.  249.  Where  claimant  was  engaged  in 
scaling  the  inner  plating  of  a  caisson,  and  particles  of  the  red  lead  being 
scaled  became  imbedded  in  sore  spots  on  the  face  or  were  inhaled  into  the 
system,  causing  incapacity,  it  was  held  to  be  an  injury.  In  re  Thayer,  Op. 
Sol.  Dept.  of  L.  266. 

5  0  In  re  Hewitt,  Op.  Sol.  Dept.  of  L.  248. 

The  statute,  if  not  restricted  to  injuries  of  an  accidental  nature,  is  at 
least  confined  to  injuries  which  are  referable  to  some  particular  event  capa- 
ble of  being  fixed  in  point  of  time.  In  re  Clark,  Op.  Sol.  Dept.  of  L.  ISS.  In 
re  Flora,  Op.  Sol.  Dept.  of  L.  226. 

51  An  employe,  vaccinated  by  direction  of  his  superior  officer  upon  recom- 
mendation of  local  health  authorities  and  the  public  health  service,  is  injured 
within  the  act  if  incapacity  follows.    In  re  Haley,  Op.  Sol.  Dept.  of  L.  255. 

5  2  In  re  Clark,  Op.  Sol.  Dept.  of  L.  188. 

53  In  re  Luttrell,  Op.  Sol.  Dept.  of  L.  219. 


§  94  workmen's  compensation  292 

tion  under  which  the  work  must  be  performed  is  within  the  Act,^* 
but  the  breaking  of  an  artificial  leg  is  not.^'* 

§  94.     Physical  violence  or  not 

At  common  law  the  incurring  of  a  disease  or  harm  to  health  is 
such  a  personal  wrong  as  to  warrant  a  recovery  if  the  other  ele- 
ments of  liability  for  tort  are  present. ^°  In  recent  years  the  ma- 
jority of  actions  grounded  upon  some  physical  violence  has  tended 
to  emphasize  the  aspect  of  injury  which  depends  upon  visual  con- 
tact or  direct  lesion.  But  that  is  by  no  means  the  exclusive  sig- 
nification of  the  word  either  in  common  speech  or  in  legal  use.^' 
The  words  "personal  injury  by  accident,"  used  in  many  of  the  Acts, 
are  not  limited  to  injuries  caused  by  violence,  but  include  disease 
incurred  by  accident. ^^  "Personal  injury"  within  the  Massachu- 
setts Act  is  not  limited  to  injuries  caused  by  external  violence, 
physical  force,  or  as  the  result  of  "accident"  in  the  sense  in  which 
that  word  is  to  be  given  a  much  broader  and  more  liberal  meaning, 
and  includes  any  bodily  injury.^®  It  includes  any  injury  or  disease 
which  arises  out  of  and  in  the  course  of  the  employment,  which 

6*  An  injury  caused  by  a  strain  from  rushing  work  under  a  time-record 
efficiency  system,  whereby  a  strong,  healthy  man  was  kept  under  a  high, 
nerve-racking  tension  during  every  minute  of  an  eight-hour  workday,  is  an 
injury  within  the  act.  In  re  Manning,  Op.  Sol.  Dept.  of  L.  279.  An  injury 
caused  by  continuous  strain,  due  to  the  nature  of  the  work,  and  which  de- 
velops gradually,  has  been  held  to  be  an  injury  covered  by  the  act.  In  re 
Sargent,  Op.  Sol.  Dept.  of  L.  275  (overruling  Crellin  Case). 

5  5  In  re  Rodriguez,  Op.  Sol.  Dept.  of  L.  227. 

5  6  In  re  Hurle,  217  Mass.  223,  104  N.  E.  33G,  L.  R.  A.  191GA,  279,  Ann.  Cas. 
1915C,  919. 

57  Id. 

5  8  Johnson  v.  London  Guarantee  &  Accident  Co.,  Ltd.,  217  Mass.  38S,  104  N. 
E.  735. 

6  9  (St.  1911,  c.  751,  as  amended  by  St.  1912,  c.  571)  Johnson  v.  London 
Guarantee  &  Accident  Co.,  Ltd.,  217  Mass.  3SS,  101  N.  E.  735. 


293  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    95 

causes  incapacity  for  work,  and  thereby  impairs  the  ability  of  the 
employe  for  earning  wages. ^^ 

§  95.     Nervous  shock 

"Personal  injury  by  accident"  includes  a  nervous  shock. ^^  The 
nervous  condition  of  an  injured  workman  is  personal  injury  by  ac- 
cident where  he  regains  his  muscular  condition,  but  honestly  be- 
lieves himself  unable  to  work,®^  as  is  also  a  nervous  shock,  pro- 

60  Id. 

61  Yates  V.  South  Kirby,  Featlierstone  and  Hemswortli  Collieries,  Ltd. 
(1910)  3  B.  W.  C.  C.  418,  C.  A.  "It  caa  be  said  that  nervous  shock  due  ta 
accident  is  as  much  personal  injury  due  to  accident  as  a  broken  leg."  Far- 
well,  L.  J.,  in  Yates  v.  South  Kirby,  Featherstone  and  Hemsworth  Collieries, 
Ltd.  (1910)  3  B.  W.  C.  C.  418,  C.  A. 

A  motorman,  whose  car  collided  with  another,  and  who  became  insane  as 
a  result  of  the  shock,  suffered  an  accidental  injury.  McMahon  v.  Interbor- 
ough  Rapid  Transit  Co.,  5  N.  Y.  St.  Dep.  Rep.  374. 

6  2  Eaves  v.  Blaenclydach  Colliery  Co.,  Ltd.  (1910)  2  B.  W.  C.  C.  329,  A.  C. 

That  the  workman,  but  for  want  of  sufficient  will  power,  could  have  thrown 
off  the  condition  of  hysterical  blindness  and  neurosis  caused  by  the  injury, 
did  not  deprive  him  of  his  right  to  compensation.  In  re  Hunnewell,  220 
Mass.  351,  107  N.  E.  934. 

Compensation  may  be  awarded  for  traumatic  neurosis.  Finley  v.  San 
Francisco  Stevedoring  Co.,  2  Cal.  I.  A.  C.  Dec.  174.  Where  a  workman  re- 
ceives a  blow  on  the  head,  causing  no  apparent  serious  injury,  but  inducing 
him  to  sincerely  believe  that  he  is  incurably  injured,  which  belief  inca- 
pacitates him  for  work,  he  is  entitled  to  compensation  until  his  mental  bal- 
ance is  regained.  Rollnik  v.  Lankershim,  1  Cal.  I.  A.  C.  Dec.  45.  Where 
there  is  serious  injury  to  the  spinal  column  of  a  workman  caused  by  a  fall, 
which  results  in  a  long  period  of  total  disability,  followed  by  a  period  of 
partial  disability,  during  which  the  workman  is  in  a  nervous  or  hysterical 
condition  known  as  traumatic  neurosis,  he  is  entitled  to  disability  indemnity 
for  the  loss  of  earnings  during  the  latter  period.  Manfredi  v.  Union  Sugar 
Co.,  2  Cal.  I.  A.  C.  Dec.  920.  Where  an  employ§,  who  is  injured  by  acci-< 
dent,  and  who  after  the  healing  of  his  injuries  complains  of  pain  and  suffer- 
ing, loses  weight,  and  gradually  becomes  an  invalid,  without  any  physical 
cause  therefor,  and  his  condition  is  pronounced  by  medical  experts  to  be 
traumatic  neurosis,  a  mental  or  hysterical  condition,  which  is  real  and  not 
simulated,  though  without  a  physical  basis,  he  is  entitled  to  compensation. 
Such  condition  has  long  been  recognized  as  a  natural  consequence  of  nervous 
shock  accompanying  bodily  injury   (Hakala  v.   Jacobsen-bade  Co.,  1   Cal.   I. 


§  96  workmen's  compensation  294 

ducing  neurasthenia  and  incapacity,  received  by  a  workman  while 
assisting  an  injured  fellow  workman.*^^  The  possibility  of  witness- 
ing some  shocking  injury  to  a  fellow  workman  and  receiving  a 
nervous  shock  therefrom  is  a  risk  of  any  employment.  Such  nerv- 
ous shock  arises  out  of  and  is  incidental  to  the  employment,  and  is 
compensable  if  it  definitely  causes  the  injury.  Thus,  where  an  em- 
ploye is  present  at  the  scene  of  the  death  by  accident  of  several  of 
his  fellow  employes  while  working  on  the  employer's  premises,  and 
attempts  to  aid  in  their  rescue,  and  becomes  insane  in  consequence 
of  the  shock  incident  to  the  excitement,  peril,  and  sense  of  duty  to 
aid  in  the  rescue,  such  is  disability  caused  by  accident.  There  is  no 
distinction  between  such  mental  breakdown  and  a  physical  break- 
down in  so  far  as  they  affect  the  right  to  compensation.  It  is  only 
essential  in  such  case  that  the  breakdown,  whether  mental  or  physi- 
cal, be  proximately  caused  by  accident  occurring  in  the  course  of 
the  employment.^^  It  has  been  held  by  the  Michigan  Industrial 
Accident  Board,  however,  that  where  death  or  disability  results 
from  fright,  unaccompanied  by  any  immediate  physical  injury,  no 
compensation  can  be  had.®^ 

§  Q6.     Hernia 

A  hernia  or  rupture  due  to  the  employe's  exertions  in  the  per- 
formance of  his  work  is  compensable''^  where  it  is  caused  directly, 

A.  C.  Dec.  328),  and  is  to  be  distinguished  from  malingering  (Kelly  v.  Pacific 
Electric  Ry.  Co.,  1  Cal.  I.  A.  Dec.  150).  "It  seems  to  be  entirely  a  fallacy  to 
say  that  a  man's  right  to  compensation  ceases  when  the  muscular  mischief 
is  ended,  but  the  nervous  or  hysterical  effects  still  remain."  Cozens-Hardy, 
M.  R.,  in  Eaves  v.  Blaenclydach  Colliery  Co.,  Ltd.  (1910)  2  B.  W.  C.  C. 
329,  C.  A. 

0  3  Yates  V.   South  Kirby,  Featherstone  and  Hemsworth  Collieries,  Ltd.,  3 

B.  W.  C.  C.  418,  C.  A. 

64  Reich  V.  City  of  Imperial,  1  Cal.  1.  A.  C.  Dec.  337. 

65  Visser  v.  Mich.  Cabinet  Co.,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  24. 
6  6Zappala  v.  Industrial  Ins.  Commission,  82  Wash.  314,  144  Pac.  54,  L,  R. 

A.  1916A,  295. 

A  workman,  who  ruptured  himself  while  trying  to  turn  a  wheel  without 


295  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION  DUB  §    96 

and  not  merely  aggravated,  by  the  accident,®^  notwithstanding  a 
prior  structural  weakness  in  the  region  where  the  injury  occurred.®^ 
But  where  an  existing  hernia  is  well  formed  and  of  long  standing, 
the  descent  of  the  bowel  into  the  hernial  sac  is  an  incident  of  such 
great  likelihood  to  occur  at  any  time  from  any  cause,  or  from  no 
cause,  as  not  to  be  a  proper  charge  against  the  employer  or  indus- 
try.^^  In  Coley's  monograph  on  Hernia  in  Keen's  Surgery,  vol.  4, 
p.  27,  it  is  said :  "Kaufman  of  Zurich  has  made  a  careful  study  of 
this  question  based  upon  medical  jurisprudence.  These  are  his 
conclusions :  A  hernia,  in  order  to  be  entitled  to  any  indemnity, 
must  appear  suddenly,  must  be  accompanied  by  pain,  and  must  im- 
mediately follow  an  accident.  There  must  be  proof  that  hernia 
did  not  exist  prior  to  the  accident."  '^° 

Relative  to  hernia  the  Nevada  Industrial  Commission  made  the 
following  statements  and  adopted  the  following  rules,  which  will 
prove  of  general  interest: 

"Hernia  has  been  well  said  to  be  the  stumbling  block  in  the 
amicable  adjustment  of  personal  injury  cases.  Physicians  agree 
that  hernia,  or  rupture,  due  to  an  accident — real  traumatic  hernia — 
is  rarely  met  with,  and  that  most  of  the  so-called  ruptures  at- 

any  wrench  or  jerk,  suffered  a  personal  injury  by  accident.  Fenton  v.  Thor- 
ley  &  Co.,  Ltd.  (1903)  5  W.  C.  C.  1,  H.  L. 

67  Puljevich  V.  Lime  Rock  Sugar  Co.,  1  Cal.  I,  A.  C.  Dec.  165. 

6  8  Bell  V.  Hayes-Ionia  Co.  (Mich.)  158  N.  W.  179. 

Where  hernia  was  caused  by  the  strain  from  lifting  a  gasoline  engine,  the 
workman  was  entitled  to  compensation,  though  the  hernia  would  not  have 
resulted  but  for  a  pre-existing  physical  weakness.  Robbins  v.  Original  Gas 
Engine  Co.  (Mich.)  157  N.  W.  437. 

6  9Kavas  v.  Northern  Electric  R.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  198;  United 
States  Fidelity  &  Guaranty  Co,  v.  Rawling,  1  Cal.  I.  A.  C.  Dec.  64, 

A  claim  based  on  incapacity  caused  by  hernia  following  an  injury  may  be 
allowed,  though  medical  examination  shows  prior  existence  of  hernia.  In 
re  Miro,  Op.  Sol.  Dept.  of  L.  728. 

ToMassa  v.  Crowe,  1  Conn.  Comp.  Dec.  86.  In  Dufrene  v.  Risdon  Tool  & 
Machine  Co.,  1  Conn.  Comp,  Dec,  411,  compensation  was  awarded  for  a 
hernia  due  to  overexertion  in  lifting ;  claimant  feeling  a  sudden  severe  pain 
in  the  groin  at  the  time. 


§  96  workmen's  compensation  296 

tributed  to  accidents  or  "strains"  during  employment  are  not  the 
result  of  employment,  but  coincident  with  employment.  Courts 
and  Commissions,  however,  disagree — failing  to  recognize  that 
this  subject  is  purely  scientific  and  belongs  more  to  the  province  of 
medicine  rather  than  law. 

"Very  briefly,  the  following  is  the  accepted  teaching  of  medical 
science  regarding  hernia  the  world  over,  and  which  has  been  for 
fifteen  or  twenty  years.  This  teaching  is  corroborated  from  a 
surgical  standpoint  by  all  noted  surgeons:  In  a  perfectly  normal 
man,  one  in  whom  the  canal  is  closed,  as  nature  intended  it  should 
be  during  childhood,  it  is  impossible  to  produce  a  hernia  by 
traumatism  or  accident  alone,  unless  the  accident  be  so  great  as 
to  puncture  or  rend  the  abdominal  or  belly  wall  itself.  This  is  a 
real  rupture.  This  real  and  true  condition  is  very  rare.  The  com- 
mon or  so-called  rupture,  which  is  really  all  we  meet  with,  is  a 
diseased  condition  present,  which  exists  from  birth,  and  which 
predisposes  this  man  to  a  rupture,  showing,  so  that  he  can  see  it 
most  any  time.  This  'sac'  in  which  the  rupture  shows  up  must  be 
present  to  start  with,  or  may  be  months  or  years  in  forming.  It 
cannot  be  formed  at  once.  If  the  man  is  honest  and  happens  to 
be  at  his  regular  labor,  of  course  he  attributes  the  showing  up  of 
his  so-called  rupture  to  whatever  force  is  applied  to  the  abdomen. 
It  is  not  an  accident.  The  fact  is  it  is  simply  the  final  step  in  the 
evolution  of  the  disease  called  hernia. 

"A  hernia  cannot,  therefore,  be  considered  a  permanent  partial 
disability  due  to  an  injury.  However,  it  is  a  permanent,  partial 
disabilit3^  It  cannot  be  so  considered  even  in  an  honest  man  who 
really  notices  the  swelling  for  the  first  time  while  at  work.  Neither 
can  it  be  so  considered  by  a  dishonest  man,  who  had  his  hernia 
for  a  long  time  and  states  that  he  noticed  it  after  a  strain,  etc. 
The  fact  remains  the  same;  i.  e.,  that  it  is  a  diseased  condition,  a 
permanent  partial  disability  a  long  time  in  coming. 

"In  adopting  a  ruling  on  hernia,  this  Commission  has  been  guid- 
ed by  the  advice  of  its  chief  medical  adviser.    It  has  leaned  towards 


297  CIRCUMSTANCES  UNDER   WniCH   COMPENSATION   DUB  §    96 

the  medico-legal  side  of  the  controversy  rather  than  the  purely  le- 
gal point  of  view.  Without  wishing  to  either  express  or  imply 
disrespect  for  court  decisions,  we  cannot  accept  their  opinion  as  the 
final  word  on  a  purely  medical  question.  To  do  so  would  leave 
this  question  perplexing  and  unsettled.  Where  there  is  a  direct 
question  stated  with  all  the  facts  presented,  it  would  seem  as  if  a 
physician  were  as  competent  to  express  a  sane  opinion  on  a  purely 
medical  question. 

"Medical  science  teaches  and  has  taught  for  the  past  twenty  years 
that  which  is  now  accepted  as  a  medical  and  scientific  fact,  corrob- 
orated as  such  by  the  foremost  surgeons  and  anatomists  of  the 
world ;  that  is,  that  hernia  (or  so-called  rupture)  is  a  disease  ordi- 
narily developing  gradually,  and  which  is  very  rarely  the  result  of 
an  accident. 

"With  the  object  of  treating  the  subject  of  hernia  justly  to  both 
employer  and  employe,  and  in  accordance  with  medical  and  scien- 
tific teachings  and  facts,  the  Commission  rule  as  follows : 

"Rule  I.  Real  traumatic  hernia  is  an  injury  to  the  abdominal 
(belly)  wall  of  sufficient  severity  to  puncture  or  tear  asunder  said 
wall  and  permit  the  exposure  or  protruding  of  the  abdominal  viscera 
in  some  part  thereof.  Such  an  injury  will  be  compensated  as  a 
temporary,  total  disability,  and  as  a  partial  permanent  disability, 
depending  upon  the  lessening  by  the  injury  of  individual's  earning 
capacity. 

"Rule  II.  All  other  hernias,  whenever  occurring  or  discovered 
and  whatsoever  the  cause,  except  as  under  rule  I,  are  considered 
to  be  diseases  causing  incapacitating  conditions,  or  permanent  par- 
tial disability ;  but  the  permanent,  partial  disability  and  the  causes 
of  such  are  considered  to  be  as  shown  by  medical  facts,  to  have 
either  existed  from  birth,  to  have  been  years  in  formation,  or  both, 
and  are  not  compensatory  except  as  provided  under  rule  III. 

"Rule  III.  All  cases  coming  under  rule  II  in  which  it  can  be  prov- 
en: First,  that  the  immediate  cause,  which  calls  attention  to  the 
presence  of  the  hernia,  was  a  sudden  effort  or  severe  strain  or  blow 


§  96  workmen's  compensation  298 

received  while  in  the  course  of  employment;  second,  that  the  de- 
scent of  the  hernia  occurred  immediately  following  the  cause; 
third,  that  the  cause  was  accompanied,  or  immediately  followed, 
by  severe  pain  in  the  hernial  region;  fourth,  that  the  above  facts 
Avere  of  such  severity  that  the  same  were  noticed  by  the  claimant 
and  communicated  immediately  to  one  or  more  persons — are  con- 
sidered to  be  aggravations  of  previous  ailments  or  diseases,  and  will 
be  compensated  as  such  for  time  loss  only  and  to  a  limited  extent 
only,  depending  upon  the  nature  of  the  proof  submitted  and  the 
result  of  the  local  medical  examination. 

"Rule  IV.  Rules  I,  II,  and  III,  respectively,  are  adopted  as  gen- 
eral, tentative  rules  covering  hernia  cases,  and  are  subject  to  re- 
vision, change,  amplification,  or  alteration  with,  or  without,  notice. 
The  Commission  will  not  be  bound  by  precedent.  It  holds  that 
every  case  differs  in  some  material  feature  from  almost  any  other, 
and  that  each  case  depends  for  its  decision  upon  the  particular 
facts."  '"■ 


Division  III, — Diseases 

§  97.     Diseases  compensable  as  injuries 

There  are  many  diseases  readily  distinguishable  from  occupation- 
al diseases,'^^  which  may  be,  and  frequently  are,  contracted  by  ac- 
cident, and  are  compensable  as  personal  injuries  by  accident.''^ 
The  fact  that  an  injury  may  be  classed  as  a  disease  does  not  prevent 

71  Kep.  Nev.  Indus.  Com.  1913-14,  p.  16. 

72  Adams  v.  Acme  White  Lead  &  Color  Wks.,  182  Mich.  157,  148  N.  W.  485, 
L.  R.  A.  1916A,  283. 

7  3  Heileman  Brewing  Co.  v.  Industrial  Commission,  161  Wis.  46,  152  N.  W. 
446 ;  Voelz  v.  Industrial  Com'n,  161  Wis.  240,  152  N.  W.  830.  Diseases  caus- 
ed by  accident  to  employes,  while  "performing  services  growing  out  of  and 
incidental  to  the  employment,"  are  injuries  within  the  contemplation  of  the 
Workmen's  Compensation  Act.  Yennen  v.  New  Dells  Lumber  Co.,  161  Wis. 
370,  154  N.  W.  640,  L.  R.  A.  1916A,  273. 

A  disease,  not  contracted,  but  caused  by  physical  means,  under  circum- 


299  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUB  §    9T 

it  from  being  an  accidental  injury.  Sunstroke,  though  classed  as  a 
disease,  is  not  such  a  disease  as  may  be  contracted  in  the  same 
sense  as  ordinary  diseases  may  be,  but  is  an  injury  of  an  accidental 

stances  involving  an  element  of  accident,  is  an  injury  within  the  federal 
Act.  In  re  Murray,  Op.  Sol.  Dept.  of  L.  239.  Disability  resulting  from  a 
disease  directly  due  to  a  physical  injury  of  an  accidental  nature,  or  lighted 
up  thereby,  is  an  injury.  In  re  Ellmore,  Op.  Sol.  Dept.  of  !>.  245.  A  dis- 
ease, not  contracted,  but  caused  by  physical  means,  under  circumstances  in- 
volving an  element  of  accident,  is  an  injury.  In  re  Withy,  Op.  Sol.  Dept.  of 
L.  273.  Incapacity  caused  by  the  inhalation  of  fine  dust  into  the  lungs  in 
the  course  of  employment  is  held  to  be  an  injury.  In  re  Edmonds,  Op.  Sol. 
Dept.  of  L.  259. 

Loss  of  vision  by  wood  alcohol  poisoning  is  not  an  occupational  disease. 
De  Witt  v.  Jacoby  Bros.,  1  Cal.  I.  A.  C.  Dec.  170.  The  evidence  showed  that 
the  workman  was  not  suffering  from  the  results  of  carbon  monoxide  poison- 
ing, where  it  showed  that  there  was  no  suffocation  while  at  work  sufficient 
to  cause  loss  of  consciousness,  and  failed  to  show  exposure  to  a  low  per- 
centage of  carbon  monoxide  for  a  long  period  of  time  theretofore.  Burgess 
V.  Star,  2  Cal.  I.  A.  C.  269. 

Where  an  employ^  was  working  on  a  punch  press  as  a  machinist,  and 
while  so  working,  felt  a  numbness  in  hand  and  arm,  subsequently  losing  the 
power  of  his  arm,  which  became  totally  disabled  as  a  result  of  the  jolting 
and  jarring  of  the  machine,  that  injury  comes  within  the  Workmen's  Com- 
pensation Act.    Reid  v.  Thomas  Elevator  Co.,  Bulletin  No.  1,  111.,  p.  144. 

Petitioner  was  not  injured  by  an  accident  where,  after  ten  days'  service  in 
defendant's  bleachery,  he  was  affected  with  a  rash  which  was  pronounced  to 
be  a  condition  of  eczema  that  might  have  been  caused  by  acids,  the  trial 
judge  having  found  that  the  petitioner's  condition  was  caused  by  contact 
with  the  dampened  goods.  Liondale  Bleach,  Dye  &  Paint  Works  v.  Riker, 
85  N.  J.  Law,  426,  89  Atl.  929. 

Diseases  constituting  injuries:  An  abscess  developing  after  an  accident. 
Cripps  V.  Mtna.  Life  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  68  (decision  of  Com. 
of  Arb.,  affirmed  by  Indus.  Ace.  Bd.,  also  by  Sup.  Jud.  Ct.  Mass.,  216  Mass. 
586,  Ann.  Cas.  1915B,  828,  104  N.  E.  565).  Apoplexy,  superinduced  by  over- 
exertion. In  re  Ellen  Fair,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  83 ;  Aitken 
V.  Fiulayson,  Bousfield  &  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  918,  Ct.  of  Sess. 
[An  apoplectic  shock  has  been  held  not  an  injury,  when  there  was  no  ac- 
cident. Ledoux  V.  Employers'  Liability  Assur.  Corp.,  Ltd.,  2  Mass.  Wk. 
Comp.  Cases,  493  (decision  of  Com.  of  Arb.).]  Blood  poison,  which  develops 
from  a  personal  injury.  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  26. 
Acute  bronchitis  and  lead  poisoning  contracted  as  a  result  of  the  inhalation 
of  gas  fumes  from  an  oxyacetylene-burning  machine.  In  re  Arata,  Op.  Sol. 
Dept.  of  L.  264.     Car  dine  hypertrophy  developed  from  the  inhalation  of  the 


§  97  workmen's  compensation  300 

nature/*    In  a  New  York  case  it  appeared  that  the  deceased  work- 
man inadvertently  came  in  physical  contact  with  poison  ivy,  and 

fumes  of  ether  in  the  course  of  employment  in  a  "mixing  house"  at  the 
Naval  Proving  Ground  at  Indianhead,  Md.  In  re  Clark,  Op.  Sol.  of  L.  270. 
Erysipelas  resulting  from  frost-bite,  which  caused  a  lesion  of  the  skin  and 
tissues.  Larke  v.  John  Hancock  Mut.  Life  Ins.  Co.,  90  Conn.  303,  97  Atl.  320. 
Hysterical  neurosis  which  comes  as  a  result  of  an  injury,  the  one  injured 
being  entitled  to  compensation  during  the  continuance  of  the  disability  aris- 
ing from  that  cause.  Linsner  v.  Consumers'  Ice  &  Fuel  Co.,  Mich.  Wk.  Comp. 
Cases  (1916),  61.  Infection  of  the  hand  and  a  secondary  infection  of  the  leg, 
resulting  from  an  abrasion  of  the  skin  and  the  accidental  introduction  of  a 
foreign  substance.  In  re  Green,  Op.  Sol.  Dept.  of  L.  237.  A  gonorrhoeal  in- 
fection partially  destroying  the  sight  of  a  workman's  eye.  Cline  v.  Stude- 
baker  Corporation  (Mich.)  1.55  N.  W.  519,  L.  R.  A.  1916C,  1139.  Kidney  trou- 
ble due  to  a  sudden  chill  contracted  by  working  for  a  fortnight  in  water  up 
to  the  knees.  Sheerin  v.  Clytou  &  Co.,  Ltd.  (1910)  2  I.  R.  105,  C,  A. 
Paralysis  which  resulted  from  the  rupture  of  a  small  blood  vessel  in  conse- 
quence of  the  unusual  heat  and  overexertion  by  the  employe.  La  Veck  v.  I'ark, 
Davis  &  Co.  (Mich.)  157  N.  W.  72.  Pleurisy  and  tuberculosis  resulting  where 
an  employe,  in  order  to  save  being  hurt  when  the  crane  wliich  he  was  op- 
erating broke,  jumped  into  a  river.  (Workmen's  Compensation  Law,  §  3, 
subd.  7)  Rist  v.  Larkiu  &  Sangster,  171  App.  Div.  71,  156  N.  Y.  Supp.  875. 
Pneumonia  contracted  by  a  miner  by  returning  to  his  working  place  three 
minutes  after  he  had  fired  a  shot,  and  while  it  was  still  full  of  smoke.  Kel- 
ly v.  Auchenlea  Colliery  Co.,  Ltd.  (1911)  4  B.  W.  C.  C.  417,  Ct.  of  Sess.  Pneu- 
monia resulting  from  a  chill  contracted  where  a  defect  in  the  pump  in  a  wet 
pit  allowed  water  to  accumulate  and  compelled  the  miners  to  leave  their 
work,  and  while  they  were  waiting  some  twenty  minutes  for  the  cage  icy 
cold  water  arose  to  their  knees.  Alloa  Coal  Co.,  Ltd.,  v.  Drylie  (1913)  6  B. 
W.  C.  C.  398,  Ct.  of  Sess.  Pneumonia  due  to  a  chill  contracted  by  a  miner 
who  had  to  wait  for  an  hour  and  a  half  for  the  cage  at  the  foot  of  a  shaft 
in  a  draught  of  cold  air,  because  of  a  breakdown  in  another  shaft.  Brown 
v.  W'atson,  Ltd.  (1914)  7  B.  W.  C.  C.  259,  H.  L.,  and  (1913)  G  B.  W.  C.  C.  416, 
Ct.  of  Sess.  Sciatica  contracted  by  a  boatman  in  consequence  of  jumping,  to 
e.scape  drowning,  from  a  ketch  he  had  been  piloting  into  his  own  small  boat, 
which  was  nearly  filled  with  water  by  the  sudden  weight.  Barbeary  v.  Chugg 
(1915)  8  B.  W.  C.  C.  37,  C.  A.  Scpticwmia  contracted  by  an  injured  workman 
and  causing  his  death,  (Workmen's  Compensation  Act,  §  3,  subd.  7)  Rist  v. 
Larkin  &  Sangster,  171  App,  Div,  71,  156  N.  Y.  Supp.  875.  Tetanus  resulting 
where  a  collier's  foot  was  injured  by  a  fall  of  coal.  Stapleton  v.  Dinnington 
Main  Coal  Co.,  Ltd.  (1912)  5  B.  W,  C,  C.  602,  C.  A.  An  \ilcer  which  develops 
from  a  bruise.     Hoffman  v.  Korn,  2  Cal.  I.  A,  O,  Dec.  166. 

7  4  In  re  Walsh,  Op,  Sol,  Dept.  of  L.  231. 


301  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUB  §    97 

that  the  poison  to  his  system  caused  thereby  resulted  in  sickness 
which  reduced  his  power  of  resistance  and  made  him  susceptible  to 
bronchitis.  The  attending  physician  treated  him  for  ivy  poison- 
ing, and  then  found  that  he  had  developed  more  or  less  infection, 
the  blebs  breaking  open,  and  in  that  way  became  infected,  and 
developed  into  oedema  of  the  lungs,  and  he  died  quite  suddenly.  It 
appeared,  as  found  by  the  Commission,  that  the  ivy  and  septic 
poisoning  was  the  remote  cause  of  his  death,  and  that  his  poisoned 
condition  predisposed  him  to  the  acute  congestion  of  the  lungs  of 
which  he  died.  It  was  held  that  the  injury  could  not  be  called  an 
occupational  disease,  and  that  therefore  compensation  could  be 
awarded.''^  A  disease  is  ordinarily  contracted  by  accident  where 
a  workman  becomes  afflicted  with  typhoid  fever  from  drinking  wa- 
ter furnished  him  by  his  employer,'^''  or  becomes  chilled  from 
standing  in  cold  water  while  at  work  in  a  coal  pit,  and  contracts 
pneumonia  as  a  result,'^'^  or  where  the  bacillus  of  anthrax  alights 

7  5  Plass  V.  New  Etiglaud  Ry.  Co.,  1G9  App.  Div.  826,  155  N.  Y.  Supp.  854. 

76  "The  fact  that  deceased  became  alQicted  with  typhoid  fever  while  in  de- 
fendant's service  would  not  in  the  sense  of  the  statute  constitute  a  charge 
that  he  sustained  an  accidental  injury ;  but  the  allegations  go  further,  and 
state  that  this  typhoid  affliction  is  attributable  to  the  undesigned  and  un- 
expected occurrence  of  the  presence  of  bacteria  in  the  drinking  water  fur- 
nished him  by  the  defendant  as  an  incident  to  his  employment.  These  facts 
and  circumstances  clearly  charge  that  Vennen's  sickness  was  the  result  of 
an  unintended  and  unexpected  mishap  incident  to  his  employment.  These 
allegations  fulfill  the  requirements  of  the  statute  that  the  drinking  of  the 
polluted  water  by  the  deceased  was  an  accidental  occurrence,  while  he  was 
'performing  services  growing  out  of  and  incidental  to  his  employment.' " 
Vennen  v.  New  Dells  Lumber  Co.,  161  Wis.  370,  154  N.  W.  640,  L.  R.  A.  1916A, 
273.  But  in  a  case  under  the  federal  Act  (In  re  Potter,  Op.  Sol.  Dept.  of  L.  272) 
it  was  decided  otherwise.  The  employe  in  this  case  developed  typhoid  fever, 
which  turned  into  pneumonia  and  empyema.  It  was  claimed  that  the  ty- 
phoid was  caused  by  drinking  water  which  had  been  contaminated  and  which 
was  furnished  by  the  government.  It  was  decided  that  the  cause  of  inca- 
pacity was  not  of  an  accidental  nature,  and  therefore  not  an  injury  within 
the  meaning  of  the  act. 

7  7  Drylie,  a  workman  in  a  coal  pit,  through  accident  was  exposed  to  icy 
<:old  water  up  to  his  knees  and  became  chilled,  which  made  him  sick,  result- 


§  98  workmen's  compensation  302 

on  a  wool  sorter's  eye  and  he  dies  from  the  disease.'^®  The  phrase 
"personal  injuries"  may  include  the  case  of  a  workman  suffering  a 
total  loss  of  sight  in  both  eyes  from  an  acute  attack  of  optic  neuritis 
caused  by  coal  tar  gases  escaping  from  furnaces  about  which  he 
worked,'*  and  a  case  where  the  inhalation  of  damp  smoke  and 
drenching  with  water  resulted  in  lobar  pneumonia.*"  But  injuries 
sustained  from  a  fall  due  to  a  faint  or  an  epileptic  seizure  do  not 
entitle  a  workman  to  compensation  unless  there  is  some  peculiar 
hazard  connected  with  the  place  of  the  fall.^^ 

§  98.     Previously  existing   diseases 

It  is  fundamental  principle  that  the  employer  takes  the  employe 
subject  to  his  physical  condition  when  he  enters  his  employment. 
Compensation   losses   are   not   made   solely  for  the   protection   of 

ing  in  pneumonia,  of  wliich  he  died.  Upon  the  evidence  adduced  the  court 
found  that  the  pneumonia  was  caused  by  the  chill,  and  that  death  resulted 
from  "injury  by  accident."  Alloa  Coal  Co.  v.  Drj-lie,  1  Scot.  L.  T.  167,  4  N. 
C.  C.  A.  899. 

7  8  Brintons,  Ltd.,  v.  Turvey  (190-1)  6  W.  C.  C.  1,  C.  A.,  and  (1905)  7  W.  C. 
C.  1,  II.  L. 

In  Iliggins  v.  Campbell,  1,  K.  B.  328,  affirmed  A.  C.  230,  a  workman  em- 
ployed in  a  wool-combing  factory,  in  which  there  was  wool  which  had  been 
taken  from  sheep  infected  with  anthrax,  contracted  that  disease  by  contact 
with  the  anthrax  bacillus  which  was  present  in  the  wool.  In  that  case  com- 
pensation was  allowed,  and  it  was  held  that  the  workman  was  injured  by  ac- 
cident arising  out  of  and  in  the  course  of  his  employment,  within  the  mean- 
ing of  the  English  Act  of  1897.  The  court  treated  the  disease  as  caused  by 
an  accident,  by  one  particular  germ  striking  the  eyeball.  It  was  considered 
that  the  accidental  alighting  of  the  bacillus  from  the  infected  wool  on  the 
eyeball  caused  the  injury.  It  was  treated  as  if  a  spark  from  an  anvil  hit 
the  eye.  This  may  be  seen  from  the  statement  of  Lord  Macnaghten:  "It  was 
an  accident  that  the  thing  struck  the  man  on  a  delicate  and  tender  spot  in 
the  corner  of  his  eye." 

7  9  (Wk.  Comp.  Act  1911,  pt.  2,  §  1)  In  re  Ilurle,  217  Mass.  223,  104  N.  E.  336, 
L.  R.  A.  1916A,  279,  Ann.  Cas.  1915C,  919. 

8  0  In  re  McPhee,  222  Mass.  1,  109  N.  E.  633. 

81  Kowalski  v.  Trostel  &  Sons,  Rep.  Wis.  Indus.  Com.  p.  17. 


i 


303  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    98 

employes  in  normal  physical  condition,  but  for  those  also  who 
are  subnormal,*^  except  in  exaggerated  cases  where,  in  consequence 
of   constitutional   diseases    or  disorders,   such    as   tuberculosis    or 

82  Fischer  v.  Union  Ice  Co.,  2  Cal.  I.  A.  C.  Dec.  72.  The  Compensation  Act 
does  not  make  any  exception  for  cases  of  injury  to  men  whose  health  is  im- 
paired or  below  the  normal  standard.  Neither  does  it  except  from  its  bene- 
fits the  man  who  carried  in  his  body  a  latent  disease  which  in  case  of  injury 
may  retard  or  prevent  recovery.  It  applies  to  every  man  who  suffers  dis- 
ability from  accidental  injury,  and  does  not  exclude  the  weak  or  less  fortu- 
nate physically.  Hills  v.  Oval  Wood  Dish  Co.,  Mich.  Wk.  Comp.  Cases 
(1916),  11. 

The  above-stated  principle  was  applied  in  each  of  the  following  cases: 
Where  the  workman  had  an  abnormally  high  blood  pressure,  rendering  him 
liable  to  hemorrhage  in  the  eyes  at  any  time  when  engaging  in  violent  work 
or  exercise,  and  a  hemorrhage  did  occur  while  he  was  doing  work  in  the 
course  of  his  employment,  he  was  entitled  to  compensation.  Gurney  v.  Los 
Angeles  Soap  Co.,  1  Cal.  I.  A.  C.  Dec.  163.  That  the  fractures  of  the  work- 
man's legs  were  due  to  a  disease  of  the  bones  would  not,  unless  the  bones 
were  made  brittle  by  some  virulent  disease  of  long  standing,  overcome  the 
rule  that  the  employer  is  responsible  for  results  of  injury,  though  such  re- 
sults be  more  serious  than  would  be  the  case  with  a  normal  person.  Block 
V.  Mutual  Biscuit  Co.,  2  Cal.  I.  A.  C.  Dec.  274.  A  slight  prior  inflammation, 
causing  redness  of  the  ej'elids  and  making  the  eyes  vulnerable  to  heat  and 
smoke,  did  not  deprive  a  fireman  of  disability  indemnity  for  blindness, 
where  the  heat  and  smoke  seriously  aggravated  the  previous  condition,  so 
as  to  make  incurable  what  might  have  been  easily  cured.  McGrath  v.  City  of 
San  Jose,  2  Cal.  I.  A.  C.  Dec.  349.  Where,  following  an  accidental  wrench  to 
the  back,  an  employ^  developed  osteo-arthritis,  of  which  no  symptoms  had 
theretofore  appeared,  although  investigations  showed  that  a  chronic  disease 
of  the  spine  had  begun,  but  disability  had  been  precipitated  only  by  the  ac- 
cident, and  there  were  no  indications  of  chronic  infectious  disease  to  which 
the  osteo-arthritis  might  be  attributable,  the  employer  was  liable  for  com- 
pensation. Turner  v.  City  of  Santa  Cruz,  2  Cal.  I.  A.  C.  Dec.  991.  Where 
there  was  involved  no  tearing  of  the  ligaments  or  fascia  of  the  workman's 
feet,  but  rather  a  disability  which  developed  as  a  result  of  his  being  in  bed 
for  many  weeks,  and  later  extraordinary  use  of  his  right  foot  while  on 
crutches,  his  pre-existing  flat-foot  condition  did  not  constitute  a  defense 
against  a  claim  for  disability  resulting  from  the  injury  to  such  flat  feet. 
Freeh  v.  San  Joaquin  Light  &  Power  Corp.,  2  Cal.  I.  A.  C.  Dec.  948.  It  is  no 
defense  that  the  injuries  would  not  have  been  as  great,  except  for  the  effect 
of  prior  injury  received  before  entering  the  employment  of  the  defendant. 
Bedini  v.  Northwestern  Pacific  R.  R.  Co.,  1  Cal.  I.  A.  C.  Dec.  312. 


! 


§  98  vYorkmen's  compensation  S04 

syphilis,  an  injured  workman  suffers  for  a  period  far  beyond  what 
would  be  the  case  if  he  were  in  ordinary  health, ^^  in  which  cases 
compensation  will  be  awarded  only  for  the  longest  period  of  dis- 
ability for  which  a  normal  person  sustaining  the  same  accidental 
injury  would  reasonably  be  disabled.^*  It  follows  that  neither  a 
congenital  weakness  ^^  nor  a  pre-existing  disease  will  render  non- 
compensable  an  injury  received  under  conditions  which  would  oth- 
erwise make  it  compensable.*®  But  this  does  not,  of  course,  dis- 
ss Walters  v.  Brune,  2  Cal.  I.  A.  C.  Dec.  249. 
8  4  Van  Dalsem  v.  Di  Fiore,  1  Cal.  I.  A.  C.  Dec.  229. 

Where  the  employ^  sustains  a  slight  injury  which  normally  would  not  re- 
sult in  disability  lasting  more  than  a  few  weelvs,  and  because  of  a  previously 
existing  disease  the  injury  results  in  a  continuing  disability,  such  continuing 
disability  is  not  compensable  beyond  the  normal  period  of  disability  result- 
ing from  the  injury.  Johnson  v.  Lowe,  2  Cal.  I.  A.  C.  Dec.  568.  Where  an 
employe,  who  had  long  been  suffering  from  a  slow  tubercular  process  in 
progress  in  the  lungs,  falls  off  in  front  of  a  handcar  and  is  crushed  and 
bruised  under  it,  he  is  entitled  to  compensation  for  the  disability  proximate- 
ly caused  by  the  accident,  but  not  for  the  continuing  disability  due  to  de- 
pressed vitality,  cliange  of  habits  and  surroundinirs,  and  poor  liygieue  incident 
to  failing  resources,  these  not  being  caused  by  the  accident,  but  only  remote- 
ly attributable  to  it.  Masich  v.  Northwestern  Pacific  R.  R.  Co.,  2  Cal.  I.  A. 
C.  Dec.  545. 

85  A  claim  is  not  ban-ed  by  evidence  of  congenital  weakness  which  may 
have  contributed  to  cause  an  injury  to  result  in  incapacity.  In  re  Mulver- 
hill,  Op.  Sol.  Dept.  of  L.  G72. 

so  In  re  Madden,  222  Mass.  4S7,  111  N.  E.  379;  Forrest  v.  Roper  Furni- 
ture Co.,  1S7  111.  App.  504. 

Decedent,  a  man  over  middle  age,  working  in  defendant's  woodworking 
shop,  at  the  time  of  seizure  just  preceding  his  death,  was  furrowing  certain 
posts,  pushing  them  forward  against  the  knives  of  tlie  furrowing  machine  by 
pressing  his  abdomen  forcibly  against  the  end  of  the  post.  When  he  had 
finished  part  of  them,  he  sat  down,  evidently  in  great  pain,  and  died  three 
days  later  from  internal  hemorrhage,  which  defendant  claimed  was  produced 
by  rupture  resulting  from  cancer.  The  court  held  that,  though  decedent  was 
suffering  from  internal  cancer,  such  facts  warranted  a  finding  that  the  un- 
usual pressure  of  the  posts  on  parts  weakened  by  disease  was  the  proximate 
cause  of  his  death,  and  hence  it  was  caused  by  an  accident  arising  out  of 
and  in  the  course  of  his  employment  Voorhees  v.  Smith  Schoonmaker  Co., 
86  N.  J.  Law,  500,  92  Atl.  2S0,  which  cites  tlie  case  of  Jones  v.  Public  Service 


305  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION  DUE  §    98 

Ry.  Co.,  86  N.  J.  Law,  646.  92  Atl.  397,  lioldiug  Uvdt,  where  a  passenger  suf- 
fering from  chronic  Bright's  disease  and  a  valvular  disease  of  the  heart, 
dropped  while  walking  on  the  street  about  20  hours  after  derailment  of  the 
car  on  which  he  was  riding,  the  question  whether  the  accident  was  the 
cause  of  his  death  was  for  the  jury. 

Though  there  is  a  diseased  condition  before  the  injury,  and  it  would  not 
have  caused  death  but  for  this  antecedent  condition,  still  if  septicaemia  en- 
sues naturally,  actually,  and  apparently  unavoidably  from  the  injuries,  the 
case  is  compensable.  Mazzarisi  v.  Ward,  170  App.  Div.  868,  156  N,  Y.  Supp. 
964. 

Where  an  employ§  has  previously  been  sufCering  from  tuberculosis  of  the 
lungs,  which  condition  had  become  quiescent,  and  on  the  happening  of  the 
accident,  causing  a  fractured  rib,  such  tubercular  condition  is  lighted  up, 
compensation  is  payable  for  increased  disability  due  to  the  recurl-ence  of 
the  tuberculosis.  Birk  v.  Matson  Navigation  Co.,  2  Cal.  I.  A.  C.  Dec.  177. 
Where  a  carpenter  at  work  in  a  cramped  position  on  his  knees  strained  his 
knee  upon  arising,  which  strain  results  in  prolonged  disability,  and  on  be- 
ing operated  upon  it  was  discovered  that  he  was  affected  with  fibrolipoma 
or  fatty  tumor  under  the  kneecap,  not  caused  by  the  accident,  but  previously 
in  existence,  though  no  impairment  of  the  knee  had  been  suffered  prior  there- 
to, the  disability  was  compensable.  Globe  Indemnity  Co.  v.  Terry,  2  Cal.  I. 
A.  C.  Dec.  682. 

In  Schmidt  v.  O.  K.  Baking  Co.,  1  Conn.  Comp.  Dec.  683,  on  rehearing,  it 
was  held  that  the  previous  health  of  the  employe  is  not  a  factor,  provided 
that  it  be  shown  that  the  incapacity  or  death  of  the  employe  was  due  to 
some  injury  that  would  be  otherwise  subject  to  compensation.  In  Flotat 
V.  Union  Hardware  Co.,  1  Conn.  Comp.  Dec.  5,  it  was  held  that  injuries  re- 
ceived two  years  prior  to  the  passage  of  the  Act,  which  aggravated  the  effect 
of  a  later  compensable  injury  by  accident,  were  not  to  be  considered. 

Where  a  foundry  helper  received  a  slight  burn  from  the  spattering  of  hot 
iron,  and  later  received  a  second  burn  in  the  same  place,  and  also  was  suf- 
fering from  a  varicose  condition,  which  was  aggravated  by  such  burns,  ne- 
cessitating an  operation,  he  was  entitled  to  compensation.  Mustaikas  v.  Cas- 
ualty Co.  of  America,  2  Mass.  Wk,  Comp.  Cases,  547  (decision  of  Com.  of 
Arb.).  While  the  employe,  a  boy  of  16,  was  operating  a  milling  machine,  a 
piece  of  emery  flew  into  his  right  eye.  A  fellow  employe  removed  the  particle 
of  emery  a  day  or  two  thereafter,  using  the  end  of  a  bone  or  ivory  handle 
of  a  tooth  brush  for  the  purpose.  The  eye  was  badly  infiamed  at  the  time  of 
the  removal  of  the  emery,  and  it  was  shown  that  the  injury  itself,  together 
with  the  physical  effects  of  removing  the  emery  so  aggravated  and  accel- 
erated a  sluggish,  inflammatory  disease  of  a  chronic  nature  as  to  cause  to- 
tal incapacity  for  work.  The  classification  of  the  disordered  condition  of  the 
eye  before  the  injury  could  not  be  determined  with  certainty.  Tlie  Commit- 
tee of  Arbitration  and  Board  held  that  the  employ^  was  entitled  to  compen- 
HoN.CoMP.— 20 


§  98  workmen's  compensation  306 

sation.  Fleming  v.  Mass.  Employes'  Insur.  Ass'ii,  2  Mass.  Wk.  Comp.  Cases, 
411  (decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.). 

Decisions  under  federal  Act. — A  physical  injury,  wbich  aggravates  a  pre- 
vious ailment,  so  as  to  disable  an  employe,  where  disability  would  not  have 
been  caused,  but  for  such  previous  ailment,  is  an  injury  within  the  Act. 
In  re  Jarvis,  Op.  Sol.  Dept.  of  L.  219.  An  accidental  injury,  received  in  the 
course  of  employment,  but  arising  in  consequence  of  a  disease,  is  an  injury 
within  the  Act ;  the  accident  being  regarded  as  the  proximate,  and  the  disease 
as  the  remote,  cause.  In  re  Clements,  Op.  Sol.  Dept.  of  L.  228.  An  injury  by 
a  fall,  which  lights  up  or  aggravates  a  previous  ailment,  causing  incapacity, 
was  held  to  be  an  injury  within  the  Act.  In  re  Springer,  Op.  Sol.  Dept.  of  L. 
267.  A  physical  injury,  brass  poisoning,  which  aggravates  a  previous  ail- 
ment, here  tuberculosis,  so  as  to  disable  an  employe,  when  disability  would 
not  have  been  caused,  but  for  such  previous  ailment,  is  an  injury  within  the 
Act.  In  re  Devine,  Op.  Sol.  Dept.  of  L.  277.  Claimant  suffered  an  injury 
which  aggravated  an  existing  acute  nephritis,  causing  incapacity ;  the  injury 
itself  not  being  sufficient  to  produce  incapacity.  Claim  held  to  have  been 
established.  In  re  Hickman,  Dec.  1,  1913,  Op.  Sol.  Dept.  of  L.  p.  751.  An 
injury  in  the  nature  of  a  strain,  which  lights  up,  excites,  or  aggravates  a 
pre-existing  ailment,  thereby  producing  incapacity  when  the  existing  ail- 
ment had  not  previously  caused  incapacity,  was  held  to  be  the  result  of  the 
injury.    In  re  Halloran,  Op.  Sol.  Dept.  of  L.  756. 

Injuries  held  accidental  and  compensable  under  English  Act,  noticithstand- 
ing  previously  existing  disease:  Where  a  workman  who  had  an  aneurism  of 
the  aorta,  which  was  so  far  advanced  that  it  was  apt  to  burst  at  any  time, 
v,as  ruptured  while  tightening  a  uut  with  a  spanner  without  any  extraordinary 
strain.  Clover,  Clayton  &  Co.  v.  Hughes  (1910)  3  B.  W.  C.  C.  275,  H.  L. 
Where  a  ship's  fireman,  with  diseased  arteries,  had  an  apoplectic  fit  in  the 
stokehold.  Broforst  v.  S.  S.  Blomfield  (Owners  of),  (1913)  6  B.  W.  C.  C.  613. 
Where  a  cerebral  hemorrhage  was  sustained,  through  overexertion  at  work, 
by  a  workman  whose  arteries  were  in  a  bad  condition.  Mclnnes  v.  Dunsmuir 
and  Jackson  (1909)  1  B.  W.  C.  C.  226,  Ct.  of  Sess.  Where  a  workman  who 
had  a  weak  heart,  after  pushing  an  empty  track,  fell  and  died  soon  afterward. 
Doughton  V.  Hickman,  Ltd.  (1913)  6  B.  W\  C.  C.  77,  C.  A.  Where  a  workman, 
whose  heart  was  so  weak  that  any  slight  exertion  might  cause  death,  was 
descending  the  side  of  a  ship  by  means  of  a  rope  ladder,  and,  the  ladder  twist- 
ing, he  fell  into  the  water;  his  death  not  being  caused  by  drowning,  but 
by  heart  failure.  Trodden  v.  McLennard  &  Sons,  Ltd.  (1911)  4  B.  W.  C.  C. 
190,  C.  A.  Where  a  man  of  low  vital  condition,  who  was  employed  as  a 
trimmer  on  board  a  liner,  suffered  a  heat  stroke  when  he  was  drawing  ashes 
from  a  ship's  furnaces.  Ismay,  Imrie  &  Co.  v.  Williamson  (1909)  1  B.  W.  C.  C. 
230,  H.  L.  Where  a  debilitated  workman,  who  had  injured  his  knee,  took  a 
long  time  to  get  home  on  a  cold  day,  and  contracted  pneumonia  as  a  result. 
Ystradowen  Colliery  Co.,  Ltd.,  v.  Griffiths  (1910)  2  B.  W.  C.  C.  357,  C.  A. 
Where  the  hand  of  a  workman  having  gouty  diathesis  was  jarred  by  a  mishit 


307  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    98 

pense  with  the  necessity  that  the  injury  shall  have  been  actually 
caused  by  an  accident  or  occurrence  in  the  course  of  employment." 

of  a  fellow  workman  with  a  hammer,  and  gout  was  brought  on  by  the  jar. 
Lloyd  V.  Sugg  &  Co.,  Ltd.  (1900)  2  W.  C.  C.  5,  C.  A.  Where  a  scullion,  with 
an  abnormally  sensitive  skin,  sustained  inflammation  of  the  hands  from  wash- 
ing crockery  in  hot  water  and  soda.  Dotzauer  v.  Strand  Palace  Hotel,  Ltd. 
(1910)  3  B.  W.  C.  C.  3S7.  Where  an  osteo-arthritic  condition  existed  prior  to 
the  accident,  and  the  disability  was  thereby  prolonged  beyond  a  reasonable 
time  for  recovery  from  the  injury,  compensation  could  not  be  allowed  for 
disability  which  could  be  attributed  solely  to  the  previous  condition  of  osteo- 
arthritis.   Mullan  V.  Rogers,  2  Cal.  I.  A.  C.  Dec.  927. 

87  An  employe,  overtaken  while  at  work  by  a  disability  due  to  some  unas- 
certained internal  disorder,  not  shown  to  have  been  caused  by  any  accident 
or  occurrence  in  the  course  of  employment,  is  not  injured  within  the  act.  In 
re  Trammell,  Op.  Sol.  Dept.  of  L.  244. 

An  employs  had  been  away  from  his  place  of  employment  on  an  errand, 
and  had  returned,  when  suddenly,  while  watching  his  subordinate  repair  a 
warp,  he  fell  to  the  floor  unconscious.  The  employ^  had  not  been  perform- 
ing any  act  in  the  course  of  his  employment;  he  had  not  made  any  undue 
exertion;  he  had  not  received  any  hurt  or  harm  or  injury;  he  had  started  to 
assist  his  loom  fixer  when  he  dropped  to  the  floor,  without  warning  of  any 
kind,  and  died  20  minutes  later.  The  medical  examiner,  and  the  physician 
who  was  called  to  attend  him,  diagnosed  the  case  as  heart  failure.  It  was 
held  that  he  died  from  natural  causes  and  that  his  widow  was  not  entitled 
to  compenstion.  Lightbrown  v.  American  Mutual  Liability  Ins.  Co.,  2  Mass. 
Wk.  Comp.  Cases,  243  (decision  of  Com.  of  Arb.). 

Where  continued  disability  followed  the  blowing  of  cement  dust  into  the 
eyes  of  a  workman  previously  suffering  from  trachoma,  award  could  be  made 
for  a  continued  disability  arising  out  of  the  disease  of  trachoma,  which  is 
highly  infectious  and  ordinarily  contracted  without  the  intervention  of  any 
accident  whatever,  and  is  therefore  not  compensable.  Beaushamp  v.  Chans- 
lor-Canfield  Midway  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  510.  Where  a  girl  doing 
fairly  heavy  work,  as  a  packer  of  dried  fruit,  suddenly  suffers  pain  and  is 
unable  to  continue  at  her  work,  and  an  X-ray  shows  a  condition  of  cervical 
ribs  existing  from  birth,  which  of  itself  ordinarily  results  in  disability  before 
the  age  of  30,  and  explains  the  nature  of  the  disability  suffered,  there  being 
no  evidence  of  an  accident  causing  the  disability  to  come  sooner  than  usual, 
compensation  cannot  be  awarded.  Nesselroad  v.  Castle  Bros.,  2  Cal.  I.  A.  C. 
Dec.  529. 

Where  it  appeared  that  the  applicant  had  suffered  from  glaucoma  of  his 
eye  several  years  before,  and  that  this  was  a  disease  which  was  apt  to  recur 
at  any  time  without  warning,  and  without  the  victim's  being  able  to  specify 


§  98  workmen's  compensation  308 

Nor  does  a  disease  which  under  any  rational  work  is  likely  to  pro- 
gress so  as  to  finally  disable  the  employe  become  a  "personal  inju- 
ry" merely  because  it  reaches  the  point  of  disability  while  the  work 

any  definite  cause,  and  the  evidence  of  an  accident  by  getting  glue  or  caus- 
tic soda  in  the  eye  was  peculiarly  indefinite,  the  disability  was  held  due  to 
disease,  and  not  to  an  accident.  Damerow  v.  Paine  Lumber  Co.,  Eep.  Wis. 
Indus.  Com.  1914-15,  p.  34. 

It  has  been  held  not  to  be  personal  injury  by  accident  where  a  farm  labor- 
er was  feeding  corn  into  a  machine  by  shoving  a  basket  into  a  heap  of  corn 
on  the  floor,  lifting  it  four  or  five  feet,  and  tilting  it  into  the  hopper  of  the 
machine,  and  died  of  heart  failure  while  so  working  (Kerr  v.  Ritchies  [1913] 
6  B.  W.  C.  C.  419,  Ct.  of  Sess.)  ;  where  a  workman,  who  had  an  advanced 
case  of  heart  disease  of  long  standing,  felt  a  sudden  pain  when  he  was  lifting 
a  hutch  onto  the  rails,  and  was  compelled  to  quit  work  (Speuce  v.  Baird  &  Co., 
Ltd.  [1912]  5  B.  W.  C.  C.  542) ;  where  an  omnibus  driver,  who  had  heart  dis- 
ease, was  sitting  on  his  omnibus  at  the  station,  and  fell  to  the  ground  and 
died,  the  judge  finding  from  the  conflicting  evidence  that  death  was  caused 
by  heart  disease  and  not  by  the  fall  (Thackway  v.  Connelly  &  Sons  [1910] 
3  B.  W.  C.  C.  37,  C.  A.) ;  where  a  workman's  heart  was  in  a  bad  condition, 
and  he  collapsed  at  work  and  died  the  same  day  from  angina  pectoris  (Haw- 
kins V.  Powell's  Tillery  Steam  Coal  Co.,  Ltd.  [1911]  4  B.  W.  C.  C.  178,  C.  A.) ; 
where  a  workman,  who  had  progressive  heart  disease,  died  while  he  was 
rushing  to  the  railway  depot  with  a  package  for  his  emploj-er  (O'Hara  v. 
Hayes  [1910]  3  B.  W.  C.  C.  5S6,  C.  A.) ;  where  an  old  rupture  became  strangu- 
lated while  a  farm  steward  was  driving  a  sow  across  the  rough  moorland, 
and  death  took  place  later  after  an  operation  (Walker  v.  Murrays  [1911]  4  B. 
W.  C.  C.  409) ;  where  a  workman,  who  wore  a  truss  and  was  employed  at 
heavy  work  as  a  stoker,  shortly  after  returning  from  his  dinner  hour  in  good 
health,  was  found  to  be  in  great  pain  and  died  soon  afterwards  from  strangu- 
lated hernia  (Scales  v.  West  Norfolk  Farmers'  Manure  &  Chemical  Co.,  Ltd. 
[1913]  6  B.  W.  C.  C.  188,  C.  A.) ;  where  an  old  hernia  became  strangulated 
while  a  collier  was  at  work,  but  there  was  no  evidence  of  strain  (Perry  v. 
Ocean  Coal  Co.,  Ltd.  [1912]  5  B.  W.  C.  C.  421) ;  where  a  collier,  who  was  in 
an  advanced  stage  of  Bright's  disease,  told  a  fellow  workman  he  had  hurt 
himself,  and  went  home,  shortly  afterwards  dying  of  uraemia  caused  by 
Bright's  disease  (Ashley  v.  Lilleshall  Co.,  Ltd.  [1912]  5  B.  W.  C.  C.  85,  C.  A.) ; 
where  a  collier,  whose  arteries  were  so  diseased  as  to  render  apoplexy  prob- 
able at  any  time,  died  in  working  hours  while  engaged  in  the  heavy  work  of 
building  a  pack,  but  there  was  no  evidence  that  death  supervened  during 
exertion  (Barnabas  v.  Bersham  Colliery  Co.  [1911]  4  B.  W.  C.  C.  119,  H.  L., 
and  3  B.  W.  C.  C.  216,  C.  A.) ;  and  where  a  workman  with  heart  disease 
quit  work,  saying  that  he  had  strained  his  heart  when  he  was  turning  a 


309  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUE  §    98 

is  being  done.^^  Since  it  is  only  when  there  i^  a  direct  causal  con- 
nection between  the  exertion  of  the  employment  and  the  injury 
that  an  award  of  compensation  can  be  made,  the  material  question 
to  be  determined  is  Vv^hether  the  diseased  condition  was  the  cause, 
or  whether  the  employment  was  the  proximate  contributing  cause. 
In  the  former  case  no  award  can  be  made;  in  the  latter  it  ought 
to  be  made.^^  Thus,  where  pre-existing  heart  disease  of  an  em- 
ploye is  accelerated  to  the  point  of  disablement  by  the  exertion  and 
strain  of  the  employment,  not  due  to  the  character  of  the  disease 
acting  alone  or  progressing  as  it  would  in  any  rational  work,  there 
may  be  found  to  have  been  a  personal  injury. ^°  Where  it  is  im- 
possible to  determine  how  much  of  the  disability  is  due  to  accident 
and  how  much  to  the  pre-existing  condition,  the  whole  disability 
is  compensable.^^ 

heavy  valve,  but  there  was  no  other  evidence  of  accident,  and  the  judge,  al- 
though disbelieving  his  evidence,  awarded  in  his  favor,  there  was  not  suf- 
ficient proof  of  accident  (Beaumont  v.  Underground  Electric  Railways  Co.  of 
Loudon,  Ltd.  [1912]  5  B.  W.  C.  C.  247,  C.  A.). 

8  8  In  re  Madden,  222  Mass.  487,  111  N.  E.  379. 

89  Id. 

90  (St.  1911,  c.  751)  Id.;  La  Veck  v.  Parke,  Davis  &  Co.  (Mich.)  157  N.  W. 
72;  In  re  Brightman,  220  Mass.  17,  107  N.  E.  527,  L.  R.  A.  1916A,  321; 
Weiniert  v.  Boston  Elev.  Ry.,  216  Mass.  598,  104  N.  E.  360;  Clover,  Clayton 
&  Co.,  Ltd.,  v.  Hughes  [1910]  A.  C.  242. 

Where  an  employe,  having  an  impaired  heart,  suffered  further  injury 
through  muscular  exertion  required  of  her  by  her  work,  she  was  entitled  to 
compensation.    In  re  Madden,  222  Mass.  487,  111  N.  E.  379. 

91  Where  a  man  past  GO  years  of  age,  weighing  over  200  pounds,  who  for  a 
considerable  time  had  been  in  so  vulnerable  a  condition  that  a  comparatively 
slight  injury  would  be  followed  by  a  relatively  long  period  of  disability,  was 
actively  disabled  by  the  falling  upon  him  of  a  heavily  loaded  wheelbarrow, 
which  caused  him  to  twist  and  sprain  his  ankle,  this  being  followed  by  con- 
tinuing disability,  consisting  of  arterio-sclerosis,  leg  ulcers,  varicose  veins, 
eczema  of  the  legs,  and  flat  foot,  leaving  it  impossible  to  determine  clearly 
how  much  of  such  disability  was  proximately  due  to  the  accident  and  how 
much  of  it  was  due  to  the  pre-existing  condition,  all  of  such  disability  is  com- 
pensable, since  the  employer  takes  the  employ^  as  he  finds  him.  Rouda  & 
Spivock  V.  Heenan,  3  Cal.  I.  A.  C.  Dec.  36. 


99  workmen's  compensation  310 


Division  IV. — Proof 

§  99.     Proof  of  accident 

Under  Acts  making  tlie  occurrence  of  an  accident  a  condition  to 
the  right  to  recover  compensation  and  in  cases  v^^here  accident  is 
relied  on,  proof  of  injury  by  accident  is  essential  to  the  validity  of 
an  award. '^^    While  proof  which  is  as  consistent  wath  the  theory  of 

«2  Englebretson  v.  Industrial  Accident  Commission,  170  Cal.  793,  151  Pac. 
421.  In  Butler  v.  Slioflield  Farms,  The  Bulletin,  N.  Y.,  vol.  1,  No.  4,  p.  11, 
compensation  was  denied  where  there  was  not  sufficient  evidence  that  claim- 
ant's fall  was  due  to  an  accident. 

The  burden  of  proving  that  death  was  caused  by  accident  rests  on  the 
party  seeking  compensation.  Reimers  v.  Proctor  Pub.  Co.,  85  N.  J.  Law,  441,  89 
Atl.  931. 

The  burden  of  proof  is  upon  an  applicant  for  death  benefits  to  establish 
the  fact  of  accident.  Holden  v.  Maryland  Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  14 ; 
Lucien  v.  Judson  jNIfg.  Co.,  1  Cal.  I.  A.  C.  Dec.  59;  Wallace  v.  Regents  of 
University  of  California,  1  Cal.  I.  A.  C.  Dec.  97.  The  burden  of  proof  is 
on  the  employe  to  show  that  the  accident  is  the  proximate  cause  of  the 
disability,  and  where  it  appears  clearly  that  the  employe's  condition  prior 
to  the  accident  was  such  that  an  operation  for  hydrocele  would  be  bene- 
ficial and  was  contemplated  by  him,  the  fact  that  he  had  a  fall  from  a  lad- 
der making  such  operation  immediately  necessary  is  not  sufilcient  to  place  the 
burden  of  responsibility  on  the  industry  for  the  disalnlity.  Baine  v.  Libby, 
McNeil  &  Libby,  2  Cal.  I.  A.  C.  Dec.  433.  Where  the  only  testimony  as  to  the 
occurrence  of  an  accident  is  to  the  effect  that  the  employ^  felt  a  pain  in 
his  finger  and  supposed  a  small  sliver  of  steel  from  a  tack  had  penetrated 
into  it,  but  no  foreign  object  could  be  found  then,  or  thereafter  when  the 
finger  became  infected,  such  evidence  is  insuflicient  to  establish  the  cause  of 
the  injury  as  penetration  by  such  sliver  of  steel.  The  presence  of  such  sliver 
is  based  upon  assumption  only.  The  burden  of  proof  is  upon  the  applicant, 
and  is  not  fulfilled  by  this  testimony.  Seiberlich  v.  Buckingham  &  Hecht, 
1  Cal.  I.  A.  C.  Dec.  372. 

Sufficiency  of  proof  of  accident— Where  a  gamekeeper  handled  an  animal 
on  August  5th  which  later  died  of  anthrax,  and  on  August  11th  he  himself 
fell  ill  of  the  same  disease  and  died,  it  was  held  not  proven  that  there  was 
an  accident.  Sherwood  v.  Johnson  (1912)  5  B.  W.  C.  C.  686,  C.  A.  In  Lor- 
enzo V.  Bigelow-IIartford  Carpet  Co.,  1  Conn.  Comp.  Dec.  216,  it  was  held  on 
conflicting  evidence  that  the  claimant  had  established  by  the  preponderance 


311  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    99 

no  accident  as  with  the  theory  of  accident  is' insufficient,®^  proof  of 
accident  need  not  negative  every  other  possibility,®*  nor  need  it 

of  the  evidence  an  accident  in  his  employment,  consisting  of  the  falling  of 
an  iron  roller  on  his  foot,  causing  a  small  bruise,  resulting  in  tuberculosis 
of  the  bones.  In  Dube  v.  Clayton  Bros.,  Inc.,  1  Conn.  Comp.  Dec.  441,  where 
the  workman  claimed  to  have  sustained  a  rupture  by  falling  against  the  cor- 
ner of  a  tank,  but  the  examining  physician  found  no  evidence  of  such  an  in- 
jury, and  the  other  witness  for  the  claimant  testified  he  had  been  offered  pay 
to  testify  that  he  saw  claimant  fall,  though  he  did  not,  it  was  held  the  claim- 
ant's burden  of  proof  was  not  discharged.  In  Palama  v.  Chase  Metal  Works, 
1  Conn.  Comp.  Dec.  444,  where  a  workman  was  found  dead  sitting  on  the  floor 
in  an  apparently  natural  position,  and  It  was  shown  that  the  electric  current 
in  an  uninsulated  wire  from  which  claimant  contended  decedent  was  electro- 
cuted had  been  shut  off  several  hours  before  he  met  death,  it  was  held  the 
burden  of  proof  was  not  discharged.  In  Beckster  v.  Pattison,  1  Conn.  Comp. 
Dec.  61,  where  the  claimant  could  show  no  specific  time  of  injury,  and  could 
show  nothing  in  his  employment  to  which  his  blood  poisoning  was  due,  it 
was  held  that  his  claim  was  not  established.  The  employer's  report  of  the 
accident,  made  out  by  a  representative  of  the  insurance  carrier,  saying  that 
the  workman  slipped  and  struck  his  side  on  the  corner  of  a  scrap  box,  was  suf- 
ficient proof  of  an  accident.  Griffin  v.  A.  Roberson  &  Sons,  The  Bulletin,  N. 
Y.,  vol.  1,  No.  10,  p.  18. 

03  McCoy  v.  ]\Iichlgan  .Screw  Co.,  ISO  Mich.  4.54,  147  N.  W.  572,  L.  R.  A. 
1916A,  323 ;    Hills  v.  Blair,  182  Mich.  20,  148  N.  W.  243. 

It  has  been  held  that  the  occurrence  of  an  accident  was  not  proved  where  a 
collier,  who  was  obliged  to  work  on  his  knees,  died  from  blood  poisoning  re- 
sulting from  an  abscess  in  his  knee,  but  there  was  no  evidence  as  to  how  the 
abscess  was  really  caused  (Howe  v.  Fernhill  Colliers,  Ltd.  [1912]  5  B.  W. 
C.  C.  629,  C.  A.) ;  where  a  ship's  stoker,  while  in  the  tropics,  went  from  the 
stokehold  into  a  coal  bvmker,  and  was  found  there  suffering  from  heat  apo- 
plexy, which  might  or  might  not  have  been  caused  by  exertion  in  his  work 
(Olson  V.  S.  S.  Dorset  [Owners  of],  [1913]  6  B.  W.  C.  C.  658,  C.  A.) ;  where  a 
workman  at  work  cried  out  that  he  had  hurt  his  back  (although  no  one  saw 
what  happened),  and  was  taken  to  his  home,  in  which  he  died  a  week  later 
from  intestinal  obstruction  (Farmer  v.  Stafford,  Allen  &  Sons,  Ltd.  [1911]  4 
B.  W.  C.  C.  223,  C.  A.) ;  where  a  ship's  fireman  slipped  and  complained  of 
his  knee,  and  was  the  next  day  found  to  be  suffering  from  an  old  rupture 

94  Although  the  burden  of  proof  is  on  the  applicant,  it  is  not  necessary  for 
him,  in  proving  the  cause  of  death,  to  negative  every  other  possibility  of  death 
by  accidental  means.  W.  R.  Rideout  Co.  v.  Pillsbury  (Cal.  Sup.)  159  Pac. 
435. 


§  99  wokkmen's  compensation  312 

be  direct  and  positive.  It  may  rest  on  circumstances.®^  Thus, 
where  a  person  is  found  dead,  the  law  imparts  to  the  circumstances 

(Clarkson  v.  Cliarente  Steamship  Co.,  Ltd.  [1913]  6  B.  W.  C.  C.  540,  C.  A.) ; 
and  where  a  wcrknian,  who  had  been  clinibing  a  steep  path,  was  covered  with 
mud,  as  if  he  had  had  a  fall,  complained  of  pain,  and  went  home  to  bed, 
and  died  later,  after  vomiting,  from  an  old  hernia,  which  was  not  down  when 
he  went  home,  but  came  down  after  the  vomiting  (Marshall  v.  Sheppard 
[1913]  6  B.  W.  C.  C.  571,  C.  A.). 

95  Heileman  Brewing  Co.  v.  Shaw,  IGl  Wis.  443,  154  N.  W.  631. 

An  employer,  in  order  to  dry  out  an  empty  beer  tank,  burned  in  it  10 
pounds  of  charcoal.  Ten  hours  afterwards  an  employe  went  into  the  tank 
to  clean  it,  and  in  a  few  minutes  was  found  unconscious,  and  shortly  there- 
after died.  The  autopsy  disclosed  all  the  signs  of  carbon  monoxide  poison- 
ing and  no  other  injuries.  The  evidence  showing  that  carbon  monoxide 
would  be  produced  and  remain  in  said  tank  under  such  circumstances,  it 
was  held  that  the  employ^  was  killed  by  accidental  poisoning.  Markt  v.  Na- 
tional Brewing  Co.,  2  Cal.  I.  A.  C.  Dec.  881.  Where  an  employ§,  whose  duties 
as  a  night  watchman  of  the  warehouse  and  wharves  of  ttie  employer,  requir- 
ed the  keeping  up  of  steam  in  boilers,  the  making  of  regular  rounds  about 
the  plant,  and  other  duties,  was  found  missing  in  the  morning  on  the  arrival 
of  the  other  employes,  no  steam  in  the  boilers,  his  lantern  still  burning,  the 
electric  lights  not  turned  off,  a  card  indicating  12  o'clock  as  the  last  hour  on 
which  the  watchman  made  his  rounds,  the  gates  open,  suspicious  footprints 
about,  two  suspicious  characters  known  to  have  been  about,  a  pool  of  blood 
on  the  wharf,  and  a  trail  of  blood  to  the  edge,  the  torn  cap  of  the  watchman 
in  the  blood,  a  complete  disappearance  of  the  body  of  the  watchman,  no 
evidence  whatever  of  any  reason  but  the  death  of  the  employe  to  account 
for  his  disappearance,  this  evidence  was  held  sufficient  to  warrant  a  find- 
ing that  the  employe  was  killed  on  the  night  in  question.  Shea  v.  Western 
Grain  &  Sugar  Products  Co.,  2  Cal.  I.  A.  C.  Dec.  550. 

Where  the  employ^,  a  watchman,  was  found  at  the  foot  of  a  stairway  in 
his  employer's  plant,  with  a  lantern  near  him  which  he  had  carried  on  his 
rounds,  this  fact,  together  with  the  employer's  report  of  accident  that  the  in- 
juries were  supposed  to  have  been  caused  by  a  fall  from  the  stairway,  was 
sufficient  proof  of  an  accident.  Fogarty  v.  National  Biscuit  Co.,  The  Bulletin, 
N.  Y.,  vol.  1,  No.  6,  p.  9. 

Circumstances  held  sufficient  proof  of  accident:  Where  deceased  was  found 
lying  under  a  train  of  cars  with  a  hole  about  six  inches  in  diameter  in  his 
abdomen.  De  Fazio  v.  Goldschmidt  Detinning  Co.  (N.  J.  Sup.)  88  Atl.  705. 
Where  a  workman  employed  in  building  a  bridge  over  a  river  near  its  outlet 
was  last  seen  alive  at  his  home  some  miles  from  his  work,  and  his  dead  body 
was  later  found  in  the  bay,  there  being  no  evidence  as  to  how  he  met  death. 
Steers  v.  Dunnewald,  85  N.  J.  Law,  449,  S9  Atl.  1007.    West  Virginia.    Where  a 


313  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION  DUB  §    99 

the  prima  facie  significance  that  death  was  caused  by  accident 
rather  than  by  suicide.  This  presumption  persists  in  its  legal  force 
until  overcome  by  evidence. ^^  The  existence  of  an  accident  can- 
not, however,  be  inferred  without  some  substantial  basis  for  the  in- 
ference,^^ nor  can  it  be  established  by  evidence  which  is  merely 

workman  in  previous  good  healtli  discovered,  two  days  after  an  unusually 
heavy  lift  in  the  course  of  his  work,  that  he  was  ruptured,  and  died  from  a 
surgical  operation  to  relieve  it;  the  operating  surgeon  saying  that  the  rupture 
was  caused  by  a  lift.  Poccardi  v.  Public  Service  Commission,  75  W.  Va.  542, 
84  S.  B.  242,  L.  R.  A.  1916A,  299.  Wisconsin.  -Where  a  workman  in  a  brewery, 
part  of  whose  duty  was  to  clean  up  after  the  day's  work  and  to  turn  on  steam 
in  certain  machines,  was  found  injured  and  unconscious  on  the  floor  of  the 
basement  of  the  building,  and  afterward  died.  Heileman  Brewing  Co.  v. 
Shaw,  161  "V\Tis.  443,  154  N.  W.  631.  California.  Where  a  deck  hand  on  a 
steamboat,  so  loaded  as  to  make  it  convenient  to  go  forward  by  walking  along 
the  narrow  side  rail,  after  being  seen  to  go  forward,  was  nest  seen  in  the 
water,  drowning,  there  being  no  evidence  of  any  reason  for  suicide.  Olsen  v. 
Hale,  2  Cal.  I.  A.  C.  Dec.  607.  England.  Where  a  healthy  workman,  working 
in  the  hold  of  a  ship,  came  up  the  ladder  in  great  pain,  and  was  sent  home, 
where  it  was  found  that  he  had  marks  on  his  ribs,  and  later  developed  pneu- 
monia and  died.  Lovelady  v.  Berrie  (1910)  2  B.  W.  C.  C.  62,  C.  A.  Where  a 
workman,  apparently  in  good  health,  was  found  injured  after  moving  some 
very  heavy  glazed  sinks,  and  after  a  fortnight  returned  to  work,  but  still 
complained  of  a  pain  in  his  back,  and  some  months  after  died  in  a  hospital 
from  a  fracture  of  one  of  the  lumbar  vertebrte.  Hewette  v.  Stanley  Bros. 
(1913)  6  B.  W.  C.  C.  501,  C.  A.  Where  a  sailor,  who  went  on  deck  at  night  to 
get  fresh  air,  was  found  next  morning  in  the  water,  dead.  Marshall  v.  Own- 
ers of  Ship  Wild  Rose  (1910)  3  B.  W.  C.  C.  514,  H.  L.,  and  2  B.  W.  C.  C. 
76,  C.  A. 

96  Milwaukee  Western  Fuel  Co.  v.  Industrial  Commission,  159  Wis.  635,  150 
N.  W.  99S. 

Where  it  is  not  clear  concerning  a  condition  or  an  existing  state  of  facts 
that  may  be  material,  and  relates  to  the  manner  in  which  an  injury  occurred, 
the  presumption  is  that  it  was  accidental.  Hanson  v.  Commercial  Sash 
Door  Co.,  Bulletin  No.  1,  111.,  p.  30. 

9'  It  is  not  sufficient  to  think  this  or  that  is  probable.  There  must  be  prac- 
tical probability.  Howe  v.  Fernhill  Collieries,  Ltd.  (1912)  5  B.  W.  C.  C. 
629,  C.  A. 

It  is  necessary  that  proof  of  an  accident  be  reasonably  clear,  and  where  a 
baker  found  to  have  a  hernia  attributed  it  to  a  strain  occurring  while  he  was 
lifting  a  truck  load,  at  which  time  he  claimed  to  have  felt  a  pain,  but  he  said 


§  99  workmen's  compensation  314 

hearsay,®^  or,  as  a  general  rule,  by  uncorroborated  statements  of 
the  injured  workman.®®  For  corroborative  testimony  to  be  suffi- 
cient, it  must  be  direct  and  substantial,^  but  it  may  consist  of  state- 
nothing  about  it  to  his  fellow  workmen  and  continued  to  work  for  over  a 
month  thereafter,  it  was  not  proven  that  the  hernia  resulted  from  the  strain 
alleged.  Vogler  v.  M.  Carpenter  Baking  Co.,  Rep.  Wis.  Indus.  Com.  1914r-15, 
p.  35.  Where  there  was  nothing  extraordinary  in  the  employe's  work  at  the 
time  of  the  strain  alleged  to  have  caused  a  hernia,  nothing  unforeseen  or 
fortuitous  happened  to  him  at  that  time,  and  the  pain  was  not  serious,  but  only 
sufficient  to  call  his  attention  to  his  condition,  an  accidental  injury  was  not 
established.  Toennes  v.  Milwaukee  Electric  Ry.  &  Light  Co.,  Rep.  W5s.  Indus. 
Com.  1914-15,  p.  26.  Where  the  strain  alleged  as  the  cause  of  a  hernia  was 
of  a  slight  and  insignificant  character,  and  resulted  in  only  slight  pain,  not 
causing  a  cessation  in  work,  and  came  while  the  workman  was  engaged  in 
doing  an  ordinary  task  not  at  all  strenuous,  the  accident — that  is,  an  incident 
of  sufiicient  moment  to  develop  the  hernia — was  not  established.  Drolshagen 
V.  Milwaukee  Pattern  &  Mfg.  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  25. 

Where  a  delivery  boy,  after  several  falls  from  his  bicycle,  is  operated  upon 
for  hydrocele,  the  existence  of  which  was  observed  by  the  physician  at  the 
time  of  the  first  accident,  the  physician  testifying  that  it  was  then  admitted 
as  having  existed  before  that,  the  proof  of  accident  origin  was  insufficient. 
Young  V.  Paris,  2  Cal.  I.  A,  C.  Dec.  518. 

9  8  In  this  proceeding  to  review  an  award  of  compensation  it  is  held  that 
the  award  must  be  annulled,  for  the  lack  of  proof  that  the  injury  was  acci- 
dental, since  the  only  testimony  in  proof  of  the  accident  was  hearsay.  Em- 
ployers' Assur.  Corp.,  Ltd.,  v.  Cal.  Indus.  Ace.  Com.,  2  Cal.  I.  A.  C.  Dec.  453, 
170  Cal.  800,  151  Pac.  423 ;  Englebretson  v.  Indus.  Ace.  Com.,  2  Cal.  I.  A.  C. 
Dec.  449. 

9  9  In  the  proceeding  to  review  an  award  allowing  compensation  to  a  wife 
for  the  death  of  her  husband,  there  was  no  proof  that  the  injury  resulting 
in  death  was  accidental,  where  the  only  proof  was  the  hearsay  statements  and 
explanations  of  the  deceased.  Employers'  Assur.  Corp.,  Ltd.,  v.  Cal.  Indus. 
Ace.  Com.,  2  Cal.  I.  A.  C.  Dec.  452,  170  Cal.  800,  151  Pac.  423. 

Where  the  workman's  own  description  of  the  accident  differed  materially 
in  his  notice  of  accident,  his  claim,  and  his  testimony,  he  made  no  claim  until 
after  leaving  the  defendant's  employ,  his  evidence  was  unsupported,  and  the 
motormen  on  his  car  denied  any  knowledge  of  the  happening  of  any  accident, 
it  was  held  there  was  not  sufficient  proof  of  accident.  Graf  v.  Brooklyn 
Rapid  Transit  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  9. 

1  Where  the  workman  had  told  various  persons  that  he  did  not  know 
whether  the  injury  to  his  finger  had  been  caused  by  a  passing  wheelbarrow 


315  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION  DUB  §    99 

ments  made  by  him  to  his  fellow  workman  near  the  time  of  the 
occurrence,^  especially  when  they  are  in  accord  with  the  reports 
of  a  medical  expert.^  In  a  case  wherein  the  evidence  as  to  the  hap- 
pening- of  the  alleged  accident  and  as  to  the  nature  of  what  happen- 
ed at  the  time  was  equally  divided,  and  conflicting  in  both  fact  and 
credibility,  it  was  held  that  expert  and  unprejudiced  medical  ad- 
vice corroborating  the  probability  of  applicant's  testimony  author- 
ized a  decision  in  favor  of  the  applicant*  That  the  workman,  as 
frequently  happens,  is  mistaken  or  confused  as  to  the  date  of  in- 
jury, does  not  invalidate  his  claim. ^  A  prima  facie  case  may,  of 
course,  be  rebutted  by  proof  that  the  injury  was  not  accidental.^ 

or  handling  a  hammer,  and  his  claim  of  injury  by  a  wheelbarrow,  although 
corroborated  by  two  fellow  employes,  is  doubtful  because  of  the  location  of  the 
injury  this  evidence  is  insufficient  to  prove  an  industrial  accident.  Nicoletti 
V.  Penn.  Mining  Co.,  2  Cal.  I.  A.  C.  Dec.  347. 

2  When  an  employ^  claims  to  have  fallen  and  bruised  himself,  returning  to 
work  the  next  day,  infection  thereafter  setting  in  and  causing  disability,  the 
uncontradicted  testimony  of  two  fellow  workmen  that  he  told  them  of  his  fall 
at  the  end  of  the  day  of  the  accident  is  sufficient  corroboration  of  his  story 
to  prove  the  accident.  Bridgewood  v.  Union  Iron  Works  Co.,  2  Cal.  I.  A.  C. 
Dec.  599. 

3  Where  an  employe  claims  an  injury,  and  the  only  corroborative  evidence 
that  it  was  the  result  of  an  accident  was  his  statement  at  the  hospital  two 
days  after  the  alleged  accident,  which  was  in  accord  with  his  testimony  at  the 
hearing,  and  a  medical  expert  reports  that  in  his  judgment  the  trouble  was 
the  result  of  an  injury,  and  not  of  a  gonorrhoeal  infection,  there  was  sufficient 
corroboration  of  his  testimony  that  an  accident  took  place.  Pattberg  v.  Young 
&  Swain  Baking  Co.,  2  Cal.  I.  A.  C.  Dec.  SS3. 

4  Whitsell  V.  Montgomery,  1  Cal.  I.  A.  C.  Dec.  572. 

5  Ponce  v.  Engstrum  Co.,  2  Cal.  I.  A.  C.  Dec.  370. 

6  "If  personal  injury  is  caused  to  a  workman,  and  it  arises  out  of  and  in 
the  course  of  an  employment  to  which  the  Act  applies,  it  appears  to  me  that 
prima  facie  the  Act  entitles  him  to  compensation,  but  that  this  inference  may 
be  displaced  by  proof  that  the  injury  is  attributable  to  his  own  serious  and 
willful  misconduct,  or  to  some  other  cause  which  shows  that  the  injury  was 
not  accidental."  Lord  Llndley,  in  Fenton  v.  Thorley  &  Co.,  Ltd.  (1903)  5  W. 
C.  C.  9. 

The  statutory  presumption  that,  in  the  absence  of  substantial  evidence  to 
the  contrary,   the   claim   comes   within  the   Compensation   Act,   is  overcome 


§  99  workmen's  compensation  31() 

The  mere  fact  that  an  employe  may  have  a  predisposition  of 
hernia,  and  even  a  slight  or  latent  hernia,  is  no  proof  that  a  serious 
hernia  brought  on  while  in  the  course  of  and  occurring  during  his 
employment  is  not  an  "accident."  ' 

§  100.     Proof  of  injury 

The  burden  of  proof  is  on  the  applicant  to  establish  the  fact  of 
injury,  but,  where  the  injury  is  such  that  objective  symptoms  are 
absent,  dependence  must  be  placed  on  the  history  of  the  case  given 
by  the  applicant,  if  he  appears  to  be  dependable.*  Where  his  story 
of  how  the  injury  was  sustained  is  reasonable  in  itself,  and  cor- 
roborated by  the  testimony  of  the  attending  surgeon  that  his  ill- 
ness resulted  from  an  injury,  and  there  is  no  evidence  tending  to 
disprove  an  injury  received  in  the  course  of  the  employment,  suffi- 
cient evidence  is  presented  to  establish  the  fact  of  injury.®  A  claim 
may  be  approved  where  only  circumstantial  evidence  of  the  injury 
can  be  adduced,^"  and  circumstances  may  be  sufficient  to  corrobo- 

by  the  testimony  of  the  employe's  helper  and  two  bystanders  that  they  were 
present  at  the  time  and  place  the  accident  was  alleged  to  have  occurred  and 
did  not  see  any  accident  whatsoever,  and  the  testimony  of  an  examining 
physician  that  he  found  no  bruises,  discolorations,  or  abrasions  on  the  work- 
man's body  (Laws  1914,  c.  41,  §  21).  Carroll  v.  Knickerbocker  Ice  Co.,  21S 
N.  Y.  4.35,  113  N.  E.  507,  reversing  169  App.  Div.  450,  155  N.  Y.  Supp.  1. 

7  Hasenstab  v.  Chicago  House  Wrecking  Co.,  Bulletin  No.  1,  111.,  p.  62. 

The  question  as  to  whether  or  not  an  injured  employe  had  a  predisposition 
to  hernia,  or  a  weakness  toward  hernia,  is  not  material,  when  an  accident 
occurs  which  brings  forth  a  protrusion  of  the  intestines  and  causes  disability; 
it  being  an  accident  within  the  meaning  and  scope  of  the  Workmen's  Com- 
pensation Act.    Fobes  v.  Killeen,  Bulletin  No.  1,  111.,  p.  68. 

8  Murphy  v.  Casualty  Co.  of  America,  1  Cal.  I.  A.  C.  Dec.  54. 

8  Jenkins  v.  Pieratt,  1  Cal.  I.  A.  C.  Dec.  114. 

But  where  claimant's  testimony  that  he  had  sustained  a  hernia  by  a  sudden 
strain  while  lifting,  had  felt  sudden  and  severe  pain,  and  that  he  had  had  no 
former  hernia,  was  flatly  contradicted  by  several  witnesses,  compensation  was 
denied.     Silverman  v.  Zibulsky  Bros.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  13. 

10  In  re  Simpson,  Feb.  15,  1909.    Op.  Sol.  Dept.  of  L.  p.  675. 

Where  the  manner  in  which  a  workman  was  compelled  by  his  employment 


317  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    100 

rate  a  claimant's  unsupported  statement  as  to  injury  in  the  absence 
of  proof  to  the  contrary;  ^^  but,  as  was  said  in  the  next  preceding 
section  relative  to  proof  of  accident,  evidence  which  is  as  consistent 
with  the  theory  that  death  or  incapacity  was  due  to  natural  causes 
as  that  it  was  due  to  injury  is  insufficient  to  establish  the  fact  of 
injury/^    Where  injury  and  accident  are  proven,  and  the  employer 

to  handle  heavy  bales  of  waste  was  peculiarly  calculated  to  produce  severe 
abdominal  strain,  and  while  at  work  he  was  suddenly  seized  with  pain  in  the 
abdomen,  felt  weak,  and  changed  to  lighter  work,  and  was  later  found  to  have 
a  hernia,  it  was  held  there  had  been  an  accidental  injury.  Ratzberg  v.,  Deltox 
Grass  Rug  Co.,  Rep.  Was.  Indus.  Com.  1914-15,  p.  34. 

In  Maloney  v.  Waterbury  Farrel  Foundry  &  Machine  Co.,  1  Conn.  Comp. 
Dec.  220,  where  the  deceased  workman  felt  a  sudden  pain  while  lifting  a 
heavy  crank  shaft,  and  after  working  for  part  of  the  week  with  continual 
pain,  was  found  to  have  an  inguinal  hernia,  it  was  held  he  had  sustained  a 
compensable  injury. 

11  In  re  Davis,  Op.  Sol.  Dept.  of  L.  740.  Claimant  contended  that  she  struck 
and  injured  her  arm  while  at  work  in  the  Bureau  of  Engraving  and  Printing ; 
she  made  no  immediate  report,  as  it  did  not  cause  incapacity  at  the  time. 
Review  of  circumstances  showed  them  to  be  compatible  with  the  truth  of 
statement,  and  claim  was  held  to  be  established.  In  re  Johnson,  Op.  Sol.  Dept. 
of  L.  748.  The  claimant  was  not  given  an  opportunity  to  file  a  claim  immedi- 
ately following  the  injury,  and  owing  to  misunderstanding  it  was  some  time 
'before  he  was  permitted  to  file  same.  The  local  ofiicials  in  the  field  of  the 
Forest  Service  contended  that  claimant  was  not  injured  as  alleged,  and  cited 
the  fact  that  he  had  worked  in  a  coal  mine  subsequent  to  his  alleged  injury. 
Upon  consideration  of  all  evidence  submitted,  it  was  concluded  that  claimant 
had  been  injured  as  alleged  by  him,  and  the  medical  evidence  further  es- 
tablished the  fact  of  an  injury  from  the  nature  of  which  incapacity  could  be 
presumed.    In  re  Lissy,  Op.  Sol.  Dept.  of  L.  752. 

12  Where  a  person  engaged  in  cleaning  fish  had  his  hand  punctured  by  a 
fish  fin,  and  disability  followed  from  infection  setting  in,  but  two  fellow  work- 
men, instead  of  admitting  that  the  injured  workman  had  told  them  of  the 
injury  on  that  day,  as  claimed,  stated  that  the  applicant  had  received  a  punc- 
ture several  days  previously,  and  before  his  employment,  at  which  time  they 
had  put  peroxide  on  the  hand,  and  the  injured  workman  admitted  a  previous 
fish  puncture,  the  fact  of  injury  by  accident  while  under  employment  was 
established.  Chamberlain  v.  Southern  Fish  Co.,  2  Cal.  I.  A.  C.  Dec.  424. 
The  employe,  a  granite  cutter,  fell  in  the  cutting  shed  of  the  subscriber  and 
died  four  days  later  from  cerebral  hemorrhage.  The  evidence  given  by  fellow 
employes,  who  were  presumably  eyewitnesses  of  the  occurrence,  was  wholly 


§  100  workmen's  compensation  318 

contends  that  the  injury  is  not  a  new  one,  but  is  the  result  of  a 
former  accident,  the  burden  is  on  him  to  prove  this  contention. ^^ 

Delay  in  reporting  an  injury  and  presenting  a  claim  therefor 
under  the  federal  Act  does  not  establish  nonexistence  of  the  injury. 
Evidence  that  an  employe  was  strong  and  healthy  until  he  com- 
plained of  a  hurt  received  while  doing  heavy  lifting,  and  that  he 
died  suddenly  a  few  days  thereafter  for  no  other  assignable  cause, 
is  sufhcient  to  show  that  he  had  sustained  some  internal  injury, 
though  there  were  no  external  manifestations  thereof.^*  But 
evidence  of  a  slight  blow  on  the  jaw  is  not  evidence  that  tuberculosis 
of  the  cervical  glands  causing  incapacity  is  an  injury. ^° 

at  variance  with  the  weight  of  the  medical  testimony.  An  impartial  physician 
was  appointed  to  perform  an  autopsy,  and  his  report  and  evidence  showed 
that  the  said  employe  did  not  in  fact  receive  a  personal  injury.  It  was  held 
that  the  dependent  widow  was  not  entitled  to  compensation.  Birnie  v.  Con- 
tractors' Mutual  Liability  Insur.  Co.,  2  Mass.,  Wk.  Comp.  Cases,  619  (decision 
of  Com.  of  Arb.). 

13  Where  a  workman,  who  had  wrenched  his  knee  three  years  before  and 
had  several  times  since  felt  pain,  felt  a  similar  pain  on  rising  from  a  kneeling 
position,  and  found  that  the  cartilage  of  the  knee  was  ruptured,  it  was  a 
personal  injury  by  accident;  the  onus  being  on  the  employers  to  show  that 
there  was  no  new  injury.  Borland  v.  Watson,  Gow  &  Co.,  Ltd.  (1912)  5  B. 
W.  C.  C.  514,  Ct.  of  Sess. 

14  In  re  Powers,  Op.  Sol.  Dept.  of  L.'214. 

15  In  re  Hicks,  Op.  Sol.  Dept.  of  L.  217. 


319  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION  DUE 

ARTICLE  II 

ARISING  OUT  OF  AND  IN  COURSE  OF  EMPLOYMENT 

Division  I. — In  Genebal, 
Section 

101.  "In  course  of"  and  "out  of" — Necessity  and  distinction. 

102.  Employments. 

103.  Hazardous  employments. 

104.  Federal  Act. 

Division  II. — Arising  in  the  Couese  of  Employment 

105.  In  general. 

106.  Term  of  employment. 

107.  Going  to  work. 

108.  Returning  from  work. 
lOS.  Premises  of  employer. 

110.  Means  of  conveyance. 

111.  Leisure  periods — Attendance  on  personal  comforts  and  necessities. 

112.  Negligence  and  recklessness. 

113.  Disobedience. 

114.  Deviation  from  original  employment. 

Division  III. — Arising  Out  of  Employment 

115.  Risks  due  to  employment. 

116.  Risks  peculiar  to  employment. 

117.  Risks  of  commonalty. 

118.  Risks  external  to  the  employment,  but  special  exposure  to  risk  due  to 

employment. 

119.  Injury  from  forces  of  nature. 

120.  Injury  caused  by  coemploye  or  others. 

121.  Injury  from  horseplay  or  practical  joking. 

122.  Area  of  duty — Absence — Entry  and  exit. 

123.  Incurring  of  additional  risks. 

124.  Intoxication. 

125.  Susceptibility  to  risk, 

DivisijON  IV. — Proof 

126.  Burden,   requisites,    and   sufficiency   of   proof. 


101  vt'orkmen's  compensation  320 


Division  I. — In  General 

§  101.     "In  course  of"  and  "out  of" — Necessity  and  distinction 

According  to  the  usual  language  of  the  Acts,  to  warrant  recovery 
of  compensation  for  the  injury  or  death  of  a  workman,  the  injury 
must  be  one  "arising  out  of  and  in  the  course"  of  his  employment.^'' 
This  phrase  is  used  in  the  same  sense  in  the  Acts  of  England  and 
of  many  of  the  states,  and,  though  its  literary  construction  is  well 
settled,  its  application  to  particular  cases  has  given  rise  to  differ- 
ences of  opinion  not  easily  harmonized. ^^     Attempts  of  the  courts 

16  (Laws  1913,  c.  19S)  Pierce  v.  Boyer-Van  Kuran  Lumber  &  Coal  Co.,  99 
Neb.  321,  15G  N.  W.  509,  Ann.  Rep.  Neb.  St.  Dept.  of  L.  p.  94 ;  Lanigan  v.  Lan- 
igan,  222  I\Iass.  198,  110  N.  E.  2S.j;  Hills  v.  Blair,  182  Micb.  20,  148  N.  W.  243. 

Compensable  injuries  under  the  Wisconsin  Act  are  suchi  as  are  incidental 
to  and  arise  out  of  the  employment.  Hoenig  v.  Indus.  Com.,  159  Wis.  646. 
150  N.  W.  996,  L.  R.  A.  1916A,  339.  "The  language  of  the  Act  provides  for 
compensation  for  injuries  accidentally  received  while  in  the  course  of  em- 
ployment. The  English  Act  provides  for  compensation  for  injuries  accidental- 
ly received  growing  out  of  the  employment.  We  have  had  occasion  to  con- 
strue this  difference  in  langiiage  between  the  English  Act  and  our  Act  here- 
tofore, and  we  have  held  that  the  meaning  of  the  two  Acts  is  the  same,  and 
this  construction  has  been  upheld  by  the  Supreme  Court.  The  legislative 
committee  in  its  report  says  that  'compensation  shall  be  paid  when  the 
injury  grows  out  of  the  employment.  It  makes  no  difference  who  was  to 
blame.  It  is  sufficient  that  the  industry  caused  the  injury.'  This  language 
of  the  legislative  committee  construing  the  section  referred  to  can  only 
mean  one  thing,  and  that  is  compensation  is  to  be  paid  for  industrial  acci- 
dents— accidents  that  grow  out  of  the  industry.  Arnold  v.  Holeproof  Hosiery 
Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  32. 

17  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  IIG,  96  Atl.  368. 

The  words  "out  of  and  in  the  course  of  the  employment"  admit  of  an  in- 
exhaustible variety  of  application  according  to  the  nature  of  the  employment 
and  the  character  of  the  facts  proved."  Lord  Loreburn,  L.  C,  in  Kitchen- 
ham  V.  S,  S.  Johannesburg  (Owners  of),  (1911)  4  B.  W.  C.  C.  at  p.  312. 
"There  cannot  be  imagined  a  more  difficult  part  of  this  difficult  Act  to  deter- 
mine than  that  which  relates  to  injuries  by  accident  arising  out  of  and  in 
the  course  of  a  man's  employment."  Lord  Loreburn,  L.  C,  in  Warner  v. 
Couchman  (1912)  5  B.  W.  C.  C.  at  p.  179. 

Considering  that  the  members  of  the  Wainwright  Commission  which  draft- 


321  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    101 

to  formulate  general  rules  relative  to  the  distinction  between  the 
terms  "out  of"  and  "in  the  course  of"  have  not  been  entirely  suc- 
cessful. All  agree,  however,  that  the  terms  are  not  intended  to  be 
synonymous.  An  injury  may  be  received  in  the  course  of  the  em- 
ployment, and  still  have  no  causal  connection  with  it,  so  that  it 
can  be  said  to  arise  out  of  the  employment.^*  But  it  is  difficult,  if 
not  impossible,  to  conceive  of  an  injury  arising  out  of  and  not  also 
in  the  course  of  the  employment. ^^  The  importance  of  distinguish- 
ing between  these  terms  arises  from  the  fact  that  each  represents 
an  element  essential  to,  but  not  authorizing,  recovery  of  compensa- 
tion without  the  presence  of  the  element  represented,  by  the  other. 
In  other  words,  even  though  the  injury  occurred  "in  the  course  of" 
the  employment,  if  it  did  not  arise  "out  of  the  employment,"  there 
can  be  no  recovery ;  and  even  though  it  arose  "out  of  the  employ- 
ment," if  it  did  not  arise  "in  the  course  of  the  employment,"  there 

ed  the  New  York  Act  were  familiar  with  the  English  Act,  and  that  the 
words  "arising  out  of  and  in  the  course  of  the  employment"  were  taken  from 
that  Act,  the  decisions  of  the  English  courts  in  construing  this  phrase  should 
be  given  due  consideration  in  New  York.  De  Filippis  v.  Falkenberg,  170 
App.  Div.  153,  155  N.  Y.  Supp.  761 ;  Newman  v.  Newman,  169  App.  Div.  745, 
155  N.  Y.  Supp.  665. 

18  State  ex  rel.  Duluth  Brewing  &  Malting  Co.  v.  District  Court,  129  Minn. 
176,  151  N.  W.  912 ;  Bryant  v.  Fissell,  84  N,  J.  Law,  72,  86  Atl.  458 ;  In  re 
Employers'  Liability  Assur.  Corp.,  215  Mass.  497,  102  N.  E.  697,  L.  R.  A. 
1916A,  306 ;  Barnes  v.  Nunnery  Colliery  Co.,  Ltd.  (1912)  App.  C.  44  (Eug.) : 
Plumb  V.  Cobden  Flour  Mills  Co.,  Ltd.  (1914)  App.  C.  62  (Eng.). 

19  "Many  accidents  occur  in  the  course  of,  but  not  out  of,  the  employment; 
but  I  am  unable  to  think  of  any  that  could  arise  out  of,  and  not  also  in  the 
course  of,  the  employment."  Farwell,  L.  J.,  in  Leach  v.  Oakley,  Street  & 
Co.  (1911)  4  B.  W.  C.  C.  at  p.  98.  "I  think  it  is  impossible  to  have  an  acci- 
dent arising  out  of,  which  is  not  also  in  the  course  of,  the  employment ;  but 
the  converse  of  this  is  quite  possible,  as,  for  instance,  if  a  workman  were 
shot  by  a  lunatic,  or  struck  by  lightning,  while  at  the  moment  engaged  in  his 
work.  In  a  great  many  cases,  however,  the  two  phases  do  not  admit  of 
separate  consideration,  and  the  present  is  one  of  those  cases.  If  this  acci- 
dent took  place  in  the  course  of  the  workman's  employment,  it  also  indubi- 
tably arose  out  of  that  employment;  if  not,  not."  Lord  President,  in  Mc- 
Lauchlan  v.  Anderson  (1911)  4  B.  W.  0.  C.  at  p.  379. 

HON.COMP.— 21 


§  101  workmen's  compensation  322 

can  be  no  recovery.^"    Yet  in  the  words  of  an  English  jurist:   "If 
you  find  that  the  accident  arose  in  the  course  of  the  employment, 

20  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458;  In  re  Employers'  Lia- 
bility Assur.  Corp.,  215  Mass.  497,  102  N.  E.  697,  L.  R.  A.  1916A,  306. 

It  is  essential  to  a  right  to  recover  compensation  that  the  accident  not 
only  be  received  in  the  course  of,  but  shall  arise  out  of,  the  employment. 
Bayer  v.  Bayer  (Mich.)  158  N.  W.  109. 

The  words  "arising  out  of  and  in  the  course  of  his  employment,"  in  the 
Workmen's  Compensation  Act  (P.  L.  1911,  p.  134),  are  conjunctive,  and  re- 
covery can  only  be  had  under  that  act  when  the  given  injury  arose,  not 
only  "in  the  course  of,"  but  also  "out  of,"  the  employment.  Hulley  v.  Moos- 
brugger,  88  N.  J.  Law,  161,  95  Atl.  1007,  L.  R.  A.  1916C,  1203. 

The  use  of  the  conjunction  "and"  indicates  that  the  accidental  injury  must 
arise  both  out  of  and  in  the  course  of  the  employment.  An  accidental  injury 
sustained  during  the  course  of  the  employment,  but  not  arising  out  of  the 
employment,  as  well  as  such  injury  arising  out  of  the  employment,  but  not 
sustained  during  the  course  of  the  employment,  does  not  fall  within  the  provi- 
sions of  the  compensation  law.  Moore  v.  Lehigh  Valley  R.  Co.,  169  App. 
Div.  177,  154  N.  Y.  Supp.  620.  The  words  "arising  out  of  and  in  the  course 
of  employment"  are  conjunctive,  and  relief  can  be  had  under  the  Act  only 
when  the  accident  arose  both  "out  of"  and  "in  the  course  of"  employment. 
In  re  Heitz,  218  N.  Y.  148,  112  N.  E.  750,  affirming  (Sup.)  155  N.  Y.  Supp. 
1112. 

It  is  not  enough  to  say  the  accident  would  not  have  happened  if  the  serv- 
ant had  not  been  engaged  in  the  work  at  the  time,  or  had  not  been  in  that 
place.  It  must  appear  that  it  resulted  from  something  he  was  doing  in  the 
course  of  his  work  or  from  some  peculiar  danger  to  which  the  work  exposed 
him.  Amys  v.  Barton,  5  B.  W.  C.  C.  117 ;  Archibald  v.  Ott  (W.  Va.)  87  S.  E. 
791. 

In  Fitzgerald  v.  W.  G.  Clarke  &  Son,  L.  R.  1908,  2  King's  Bench,  796,  it 
was  held :  "An  employer  is  not  liable  under  the  Workmen's  Compensation 
Act,  1906,  to  pay  compensation  for  injury  caused  to  a  workman  while  en- 
gaged at  his  work  by  the  tortious  act  of  a  fellow  workman  which  had  no  re- 
lation to  the  employment.  The  words  'out  of  and  in  the  course  of  the  em- 
ployment,' in  section  1,  subsec.  I.  of  the  Act,  are  used  conjunctively,  and  are 
not  to  be  used  as  meaning  out  of ;  that  is  to  say,  in  the  course  of.  The  words 
'out  of  point  to  the  origin  or  cause  of  the  accident ;  the  words  'in  the  course 
of  to  the  time,  place,  and  circumstances  under  which  the  accident  takes 
place."  Walther  v.  American  Paper  Co.  (N.  J.)  98  Atl.  264,  quoting  Buck- 
ley, L.  J.,  in  Fitzgerald  v.  Clark  &  Sons.  Instances  of  injuries  deemed  not 
to  have  arisen  out  of  the  employment,  although  sustained  in  the  course 
thereof,  are  found  in  the  reported  cases.  An  injury  intentionally  inflicted 
upon  one  workman  by  another,  by  a  blow  from  a  piece  of  iron  thrown  in 


323  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    101 

you  may  have  gone  a  certain  way  towards  finding  that  it  arose  out 
of  the  employment,  but  you  have  not  gone  the  whole  way."  ^^  The 
words  "out  of"  point  to  the  origin  and  cause  of  the  accident  or  in- 
jury; the  words  "in  the  course  of"  to  the  time,  place,  and  circum- 
stances under  Vvdiich  the  accident  or  injury  takes  place.  The  former 
words  are  descriptive  of  the  character  or  quality  of  the  accident. 
The  latter  words  relate  to  the  circumstances  under  which  an  acci- 
dent of  that  character  or  quality  takes  place.  The  character  or 
quality  of  the  accident  as  conveyed  by  the  words  "out  of"  involves 
the  idea  that  the  accident  is  in  some  sense  due  to  the  employment. 
It  must  result  from  a  risk  reasonably  incident  to  the  employment. ^^ 

anger,  or  by  an  assault  and  battery,  is  of  that  kind.  Such,  also,  is  the 
character  of  an  injury  resulting  from  an  assault  upon  a  workman  by  a 
stranger,  and  of  one  sustained  in  the  course  of  recreation  or  diversion  at 
the  place  of  work.  In  some  of  these  cases  an  agency  wholly  independent  of 
the  work,  foreign  to  it  and  unanticipated,  intervenes,  or  there  is  a  turning 
aside  from  the  employment,  for  the  time  being,  to  engage  in  a  transaction 
ou  the  workman's  own  account  and  for  his  own  purposes.  It  is  quite  easy  to 
perceive  that  violence  of  a  fellow  workman  or  a  stranger  arises,  not  out  of 
the  work,  but  out  of  the  vicious  or  irritable  disposition  of  the  assailant,  and 
that  play  or  diversion  on  the  premises  is  a  step  outside  of  the  employment, 
and  a  thing  done  for  the  employe  himself,  and  not  for  the  employer.  In  none 
of  these  instances  is  the  occasion  of  the  injury  an  incident  of  the  work. 
Archibald  v.  Ott,  supra. 

Judge  Case,  of  the  superior  court,  said,  in  affirming  Dorrance  v.  New  Eng- 
land Pin  Co.,  1  Conn.  Comp.  Dec.  24:  "The  words  'arising  out  of  are  re- 
strictive of  the  construction  of  the  later  words  'in  the  course  of.'  A  personal 
injury  suffered  by  a  workman  while  pursuing  his  duties  gives  him  in  itself 
no  claim  for  compensation  under  the  Act ;  some  essential  relation  and  con- 
nection between  the  employment  and  the  injury  must  appear." 

The  mere  fact  of  injury,  though  sustained  in  the  course  of  the  employ- 
ment, is  insufficient,  unless  injury  has  resulted  from  accident  arising  out  of 
the  employment.  McDonald  v.  Dunn,  2  Cal.  I.  A.  C.  Dec.  71.  The  words 
"arising  out  of  and  in  the  course  of  employment"  are  conjunctive,  and  not 
disjunctive.  They  mean  distinct  things ;  hence  compensation  is  I'estricted  to 
such  injuries  as  both  arise  out  of  and  are  in  the  course  of  employment. 
Rep.  Nev.  Indus.  Com.  1913-14,  p.  25. 

21  McLaren  v.  Caledonian  Railway  Co.,  [1911]  S.  C.  1077. 
2  2  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458;  Buckley,  L.  J.,  in  Fitz- 
gerald V.  Clarke  &  Son,  [1908]  2  K.  B.  796,  77  L.  J.  K.  B.  1018.     Where  the 


§  101  workmen's  compensation  324 

accident  is  the  result  of  a  risk  reasonably  incident  to  the  employment,  it  is 
an  accident  arising  out  of  the  employment.  Hulley  v.  Moosbrugger,  87  N. 
J.  Law,  103,  93  Atl.  79;  Zabriskie  v.  Erie  R.  Co.,  85  N.  J.  Law,  157,  88  Atl. 
824,  affirmed  on  appeal,  86  N.  J.  Law,  266,  92  Atl.  385,  L.  R.  A.  1916A,  315 ; 
Terlecki  v.  Strauss,  85  N.  J.  Law,  454,  89  Atl.  1023,  affirmed  on  appeal.  An 
accident  arises  "out  of"  the  employment  when  it  is  something  the  risk  of 
which  might  have  been  contemplated  by  a  reasonable  person,  when  entering 
the  employment,  as  incidental  to  it.  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86 
Atl.  458.  This  case  finds  support  in  Armitage  v.  Lancashire  &  Yorkshire 
Ry.  Co.,  [1902]  2  K.  B.  178 ;  Collins  v.  Collins  (1907)  2  I.  R.  104,  Murphy  v. 
Berwick  (1909)  43  Ir.  I.  T.  R.  126,  and  Blake  v.  Head  (1912)  106  L.  T.  R. 
822,  in  each  of  which  recovery  was  denied  because  the  act  of  the  third  party 
was  not  a  risk  reasonably  to  be  contemplated  by  the  employ^  in  undertaking 
the  employment.  The  accidents  arising  out  of  the  employment  of  the  person 
injured  are  those  in  which  it  is  possible  to  trace  the  injury  to  the  nature  of 
the  employe's  work  or  to  the  risks  to  which  the  employer's  business  ex; 
poses  the  employ^.  Fitzgerald  v.  Clarke  &  Son,  [1908]  2  K.  B.  796;  77  L. 
J.  K.  B.  1018 ;  Coronado  Beach  Co.  v.  Pillsbury  (Cal.  1916)  158  Pac.  212. 

The  two  phrases,  "in  the  course  of  employment"  and  "resulting  from  em- 
ployment," are  not  synonymous.  The  former  relates  to  the  time,  place,  and 
circumstances  of  the  injury,  and  the  latter  to  the  origin.  McNicol's  Case, 
215  Mass.  497,  102  N.  E.  697,  L.  R.  A.  1916A,  306 ;  Archibald  v.  Ott  (W.  Va.) 
87  S.  E.  791.  An  injury  is  received  "in  the  course  of"  employment  when  it 
comes  while  the  workman  is  doing  the  duty  which  he  is  employed  to  perform. 
It  arises  "out  of"  the  employment  when  there  is  apparent  to  the  rational 
mind,  upon  consideration  of  all  the  circumstances,  a  causal  connection  be- 
tween the  conditions  under  which  the  work  is  required  to  be  performed  and 
the  resulting  injury.  Under  this  test,  if  the  injury  can  be  seen  to  have  fol- 
lowed as  a  natural  incident  of  the  work  and  to  have  been  contemplated  by 
a  reasonable  person,  familiar  with  the  whole  situation,  as  a  result  of  the 
exposure  occasioned  by  the  nature  of  the  employment,  then  it  arises  "out 
of"  the  employment.  But  it  excludes  an  injury  which  cannot  fairly  be 
traced  to  the  employment  as  a  contributing  proximate  cause,  and  which 
comes  from  a  hazard  to  which  the  workmen  would  have  been  equally  ex- 
posed apart  from  the  employment.  The  causative  danger  must  be  peculiar 
to  the  work,  and  not  common  to  the  neighborhood.  It  must  be  incidental  to 
the  chai'acter  of  the  business,  and  not  independent  of  the  relation  of  master 
and  servant.  It  need  not  have  been  foreseen  or  expected,  but  after  the 
event  it  must  appear  to  have  had  its  origin  in  a  risk  connected  with  the  em- 
ployment, and  to  have  flowed  from  that  source  as  a  rational  consequence. 
In  re  Employers'  Liability  Assur.  Corporation,  215  Mass.  497,  102  N.  E.  697, 
L.  R.  A.  1916A,  306 ;  McNicol's  Case,  215  Mass.  497,  102  N.  E.  697,  L.  R.  A. 
1916A,  306. 

It  is  well  settled  that,  to  justify  an  award,  the  accident  must  have  arisen 
"out  of,"  as  well  as  "in  the  course  of,"  the  employment,  and  the  two  are 


32'5  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUB  §    101 

An  employe  doing-  what  he  was  employed  to  do,  and  doing  it  in  the 
way  he  was  expected  to  do  it,  when  the  accident  happened,  is  in- 
jured by  accident  arising  out  of  and  in  the  cot^rse  of  the  employ- 
ment.-^ It  is  not  essential,  however,  that  the  injury  shall  have  been 
anticipated,-*   and  it  is   immaterial   Vv^hether  the   precise  physical 

separate  questions,  to  be  determined  by  different  tests,  for  cases  often  arise 
where  botli  requirements  are  not  satisfied.  An  employe  may  suffer  an  acci- 
dent wtiile  engaged  at  his  work,  or  in  the  course  of  his  employment,  which  in 
no  sense  is  attributable  to  the  nature  of,  or  risks  involved  in,  such  employ- 
ment, and  therefore  cannot  be  said  to  arise  out  of  it.  An  accident  arising 
out  of  an  employment  almost  necessarily  occurs  in  the  course  of  it,  but  the 
converse  does  not  follow.  Hopkins  v.  Michigan  Sugar  Co.,  184  Mich.  87, 
150  N.  W.  325,  L.  R.  A.  1916A,  310.  The  words  "out  of"  are  descriptive  of 
the  character  or  quality  of  the  accident.  The  words  "in  the  course  of"  re- 
late to  the  circumstances  under  which  an  accident  of  that  character  or 
quality  takes  place.  The  character  or  quality  of  the  accident,  as  conveyed 
by  the  words  "out  of,"  involves  the  idea  that  the  accident  is  in  some  sense 
due  to  the  employment.  Rayner  v.  Sligh  Furniture  Co.,  180  Mich.  168,  146 
N.  W.  665,  L.  R.  A.  1916A,  22,  Ann.  Cas.  1916A,  386.  The  language  of  the 
Michigan  Compensation  Act  is  adopted  from  the  English  and  Scotch  Acts  on 
the  same  subject,  and,  in  harmony  with  their  interpretation,  has  been  con- 
strued as  meaning  that  the  words  "out  of"  refer  to  the  origin  or  cause  of 
the  accident,  and  the  words  "in  the  course  of"  to  the  time,  place,  and  cir- 
cumstances under  which  it  occurred.  Hills  v.  Blair,  182  Mich.  20,  148  N.  W. 
243;  Hopkins  v.  Michigan  Sugar  Co.,  184  Mich.  87,  150  N.  W.  325,  L.  R.  A. 
1916A,  310. 

2  3  Boody  V.  K.  &  C.  Mfg.  Co.,  77  N.  H.  208,  90  Atl.  860,  L.  R.  A.  1916 A,  10, 
Ann.  Cas.  1914D,  1280;  De  Fazio  v.  Goldsmith  Detinning  Co.  (N.  J.  Sup.) 
88  Atl.  705 ;  Zabriskie  v.  Erie  R.  Co.,  85  N.  J.  Law,  157,  88  Atl.  824. 

An  injury  arises  out  of  and  in  the  course  of  employment  where  at  the  time 
and  place  of  its  occurrence  the  workman  is  doing  what  he  might  reasonably 
then  do.     Scott  v.  Payne  Bros.,  85  N.  J.  Law,  446,  89  Atl.  927. 

An  injury  arises  "in  the  course  of  employment"  if  it  occurs  while  the 
employ^  is  doing  what  one  so  employed  may  reasonably  do  within  the  time 
during  which  he  is  employed,  and  at  a  place  where  he  may  reasonably  be 
during  that  time.  Biddinger  v.  Champion  Iron  Co.,  vol.  1,  No.  7,  Bui.  Ohio 
Indus.  Com.  p.  70.     (Gen.  St.  1913,  §  8203.) 

2  4  State  ex  rel.  People's  Coal  &  Ice  Co.  v.  District  Court,  129  Minn.  502, 
153  N.  W.  119,  L.  R.  A.  1916A,  344 ;  Federal  Rubber  Co.  v.  Havolic,  162  Wis! 
341,  156  N.  W.  143 ;  Conunissioner  Lyon  in  Putnam  v.  Murray,  The  Bulletin, 
N.  Y.,  vol.  1,  No.  4,  p.  9. 


§  101  workmen's  compensation  326 

harm  was  the  natural  and  probable  or  the  abnormal  and  inconceiv- 
able consequence  of  the  employment.--'^  It  seems  to  be  agreed  that 
the  words  "arising  out  of  and  in  the  course  of  his  employment" 
do  not  make  the  employer  an  insurer  against  all  the  risks  of  the 
business,  but  include  only  those  injuries  arising  from  the  risks  of 
the  business  which  are  suffered  while  the  employe  is  acting  within 
the  scope  of  his  employment.^® 

The  fact  that  under  the  Washington  Act  the  employer,  being  re- 
quired to  make  reports  of  accidents,  is  directed  to  state  whether 
the  accident  "arose  out  of  or  in  the  course  of  the  injured  person's 
employment,"  is  not  determinative  that  compensation  shall  be  lim- 
ited to  injuries  received  under  such  circumstances,  in  view  of  other 
more  liberal  terms  of  the  Act.^^  It  is  essential  in  order  to  entitle 
a  workman  to  compensation  under  section  5  of  this  Act  that  he  be 
in  the  course  of  employment  only  in  case  the  injury  occurs  away 
from  the  employer's  plant.^^ 

§  102,     Employments 

The  accident  causing  the  injury  must  arise  out  of  work  or  busi- 
ness being  done  for  the  master  either  by  direct  or  implied  author- 
ity.^" The  employe  carries  with  him,  during  the  working  period, 
whether  it  be  day  or  night,  all  the  privileges  conferred  by  the  Com- 
pensation Acts.^"     The  word  "employment"  will  not  be  given  a 

25  (St.  1911,  c.  751,  pt.  2,  §  1)  In  re  Sponatski,  220  Mass.  526,  lOS  N.  E.  466, 
L.  R.  A.  1916A,  333;  In  re  Employers'  Liab.  Assur.  Corp.,  215  Mass.  497,  102 
N.  E.  697,  L.  R.  A.  1916A,  306. 
.     2  6  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  116,  96  Atl.  36S. 

2  7  Stertz  V.  Industrial  Insurance  Commission  of  Washington  (Wash.)  15S 
Pac.  256. 

28  Id. 

2  9  State  ex  rel.  Duluth  Brewing  &  Malting  Co.  v.  District  Court,  129  Minn 
176,  151  N.  W.  912. 

30  Benson  v.  Lancashire  &  Yorkshire  Railway  Co.  (1904)  6  W.  C.  C.  20, 
C.  A.  (Acts  of  1897). 


327  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUE  §    102 

narrow  or  restricted  construction.^^  It  is  not  confined  to  actual 
work.  It  extends  to  all  things  which  the  contract  of  employment 
expressly  or  impliedly  entitles  the  workman  to  do.  Thus  he  is  en- 
titled to  pass  to  and  from  the  premises  and  to  take  his  meals  on 
the  premises.  But  he  is  not  entitled,  and  therefore  he  is  not  em- 
ployed, to  do  things  which  are  unreasonable  or  expressly  forbid- 
den.^^ Although  an  office  is  an  "employment,"  it  does  not  follow 
that  every  employment  by  the  public  is  an  office.  A  man  may  be 
employed  by  the  government  under  a  contract,  express  or  implied, 
to  do  an  act,  or  perform  a  service,  without  becoming  an  officer.  But 
if  the  duty  be  a  continuing  service  defined  by  rules  prescribed  by 
the  government,  and  not  by  contract,  and  an  individual  appointed 
by  government  enters  on  the  continuing  duties  appertaining  to  his 
station,  without  any  contract  defining  them,  it  is  very  difficult  to 
distinguish  such  a  charge  or  employment  from  an  office.^^ 

Some  of  the  Acts  are  limited  in  their  operation  to  those  employ- 
ers having  five  or  more  employes,^*  excluding  members  of  the  em- 
ployer's family^^  and  casual  employes  from  the  count.^^     Any  per- 

31  Winters  v.  Mellen  Lumber  Co.,  Bui.  Wis.  Indus.  Com.,  vol.  1,  p.  89. 

32  Brice  v.  Lloyd,  Ltd.,  [1909]  2  K.  B.  809. 

3  3  Chief  Justice  Marshall  in  U.  S.  v.  Maurice,  2  Brock.  96,  102,  103,  Fed. 
Cas.  No.  15,747 ;  Blynn  v.  City  of  Pontiac,  185  Mich.  35,  151  N.  W.  681. 

3  4  The  statutes  of  some  states  limit  the  law  to  those  employers  having  five 
or  more  employes,  but  the  Iowa  Act  does  not  contain  such  a  provision,  and 
therefore  applies  to  employers  having  one  or  more  employes.  Op.  Sp.  Coun- 
sel to  Iowa  Indus.  Com.   (1915)  p.  6. 

The  original  'Connecticut  Act  applied  to  all  employers,  regardless  of  the 
number  of  employes.  Bayou  v.  Beckley,  89  Conn.  154,  93  Atl.  139,  8  N.  C. 
C,  A.  588. 

3  5  The  Connecticut  Act  as  amended  excludes  members  of  the  family  from 
the  definition  of  employes,  and  in  Young  v.  Holcomb,  1  Conu.  Comp.  Dec. 
482,  it  was  held  that,  there  not  being  five  persons  outside  the  family  em- 
ployed by  the  respondent,  and  he  having  not  accepted  the  Act  under  §  2  of 
part  B,  he  was  not  under  the  terms  of  the  Act. 

36  Clements  v.  Columbus  Sawmill  Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com. 
p.  101. 


§  103  workmen's  compensation  328 

son  engaged  in  manual  or  mechanical  labor  in  any  shop,  mill,  fac- 
tory, or  other  place,  by  whatever  name  known,  in  which  shop,  mill, 
factory,  or  place  power-driven  machinery  is  used  and  five  or  more 
persons  are  employed,  is  engaged  in  an  employment  within  the 
New  Hampshire  Act,  and  entitled  to  its  benefits  if  he  is  injured  by 
accident  arising  out  of  and  in  the  course  of  the  employment. ^'^  An 
employer  may  be  said  to  employ  "four  or  more  employes  in  a  com- 
mon employment"  within  a  provision  of  the  Wisconsin  Act  that 
every  employer  of  four  or  more  employes  in  a  common  employment 
shall  be  deemed  to  have  elected  to  accept  the  compensatory  provi- 
sions of  an  Act,  where  he  usually  employs  such  number  or  does  so 
most  of  the  time  so  that  such  employment  becomes  the  rule,  and 
not  the  exception.  The  operation  of  such  a  provision  as  to  the  em- 
ployer is  limited  to  the  usual  rather  than  the  unusual  condition  of 
a  business,  trade,  or  occupation.  Thus  a  farmer  who  does  not  reg- 
ularly employ  four  or  more  men  to  run  his  farm  was  not  an  "em- 
ployer" within  the  Act  merely  because  he  temporarily  employed 
four  or  more  men  in  threshing  time  and  occasionally  in  tobacco 
work.^^ 

§  103.     Hazardous  employments 

Many  of  the  Acts  predicate  the  right  to  recover  compensation 
on  the  employment  having  been  hazardous  or  extrahazardous.^^ 

3  7  Boody  V.  K.  &  C.  Mfg.  Co.,  77  N.  H.  20S,  90  Atl.  SCO,  L.  R.  A.  1916A,  10, 
Ann.  Cas.  1914D,  12S0. 

3  8  (Wk.  Comp.  Act,  St.  1915,  §  2394—5,  subsec.  2)  Kelly  v.  Hay  lock  (Wis.) 
157  N.  W.  1094. 

3  9  The  manifest  intent  of  the  law  is  not  to  cover  and  compensate  for  ac- 
cidents generally,  but  to  cover  accidents  occurring  in  those  employments  or 
occupations  which  are  specifically  classed  as,'  or  which  may  be  found  by  the 
commission  to  be,  extrahazardous.  Guerrieri  v.  Industrial  Insurance  Com- 
mission, 84  Wash.  2G6,  146  Pac.  60S.  Under  the  provisions  of  the  Washing- 
ton Act  abolishing  the  jurisdiction  of  the  courts  over  personal  injury  claims, 
only  those  in  the  relation  of  employer  and  employ^  in  "extrahazardous"  oc- 
cupations are  affected.  (Workmen's  Compensation  Act  Wash.  §  1)  Rulings 
Wash.  Indus.  Ins.  Com.  1915,  p.  3. 


329  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION  DUE  §    103 

This  limitation  is  not  essential,  however,  to  the  validity  of  a  Com- 
pensation Act.**^  Statutory  specifications  of  those  employments 
which  shall  be  deemed  hazardous  have  not  entirely  prevented  con- 
troversy in  respect  thereto,*^  though  it  is  apparently  not  disputed 
that  the  language  of  such  specifications  should  not  be  extended  by 
unnecessary  implication*^  to  employments  not  enumerated.*^  In 
the  construction  and  application  of  these  provisions,  it  has  been 
held  that  the  term  "hazardous  employment"  does  not  include  the 

40  The  legislative  power  to  impose  the  liability  upon  an  employer  who  is 
without  fault  does  not,  in  the  view  of  the  courts  which  have  dealt  with  the 
subject,  rest  upon  the  consideration  that  the  particular  employer  is  con- 
ducting an  industry  in  which  injury  is  more  likely  to  result  than  in  some 
other.     Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac.  398. 

41  In  Smith  v.  Price,  168  App.  Div.  421,  153  N.  Y.  Supp.  221,  the  court  said: 
"Group  41,  when  read  with  subdivision  1  of  section  3  of  the  Act,  was  evident- 
ly intended  to  apply  to  persons  operating  trucks,  or  the  other  vehicles  or  ap- 
pliances mentioned  in  the  Act,  for  profit,  when  operated  otherwise  than  upon 
tracks.  The  provision  is  plain  when  we  read  group  1,  which  includes  the 
operation  of  all  kinds  of  cars  upon  railways  and  inclined  railways.  The 
provisions  of  group  1  fairly  cover  all  vehicles  operated  for  profit  upon  tracks, 
and  it  is  a  fair  inference  that  group  41  was  intended  to  cover  all  other  ve- 
hicles operated  for  profit.  The  clause  'otherwise  than  on  tracks'  was  inserted 
in  group  41  to  distinguish  that  group  clearly  from  group  1.  The  words  'on 
streets,  highways  or  elsewhere'  are  evidently  surplusage.  While  the  expres- 
sion is  perhaps  unfortunate,  it  was  evidently  intended  to  make  certain  that 
the  group  covered  all  cars  and  trucks  except  those  operated  upon  tracks, 
covered  by  group  1." 

4  2  The  rule  of  ejusdem  generis  would  prevent  any  general  language  to  be 
extended  beyond  the  special  language  used.  People  ex  rel.  Kinney  v.  White, 
64  App.  Div.  390,  392,  72  N.  Y.  Supp.  91 ;  Lantry  v.  Mede,  127  App.  Div.  557, 
560,  111  N.  Y.  Supp.  833. 

43  The  express  mention  of  the  matters  embraced  in  the  several  groups 
necessarily  excludes  those  not  mentioned.  Aultman  &  Taylor  Co.  v.  Syme, 
163  N.  Y.  54,  57,  57  N.  E.  168,  79  Am.  St.  Rep.  565.  While  the  New  York  Act 
is  remedial,  and  should  be  given  a  liberal  construction,  the  courts  will  not 
give  the  language  of  the  Act  a  strained  or  unusual  construction  in  order  to 
bring  within  the  Act  an  employment  not  declared  by  it  to  be  hazardous.  To- 
massi  v.  Christensen,  171  App.  Div.  284,  156  N.  Y.  Supp.  905 ;  De  La  Gardelle 
V.  Hampton  Co.,  167  App.  Div.  617,  153  N.  Y.  Supp.  162. 


§  103  workmen's  compensation  330 

work  of  a  janitor,**  or  of  a  person  rendering  services  chiefly  of  a 
domestic  and  nonhazardous  character,*^  the  business  of  running 
threshing  machines,*®  the  business  of  dry  goods  and  clothing,*'^  or 
the  work  of  one  engaged  in  harvesting  ice,  such  employments  not 
being  enumerated,*^  but  includes  a  street  car  company,*^  the  case 
of  an  employe  standing  on  a  scaffold  while  painting  a  sign  of  a 
building,^"  an  employe  of  a  brewery,°^  a  teamster  hauling  sand," 

■t-t  The  work  of  a  janitor  is  not  within  the  enumerated  hazardous  em- 
ployment, though  he  be  Injured  while  working  on  a  flagpole  on  top  of  a 
building.    Gleisner  v.  Gross  &  Hebener,  170  App.  Div.  37,  155  N.  Y.  Supp.  946. 

Workmen's  Compensation  Act,  §  2,  provides  that  the  Act  shall  apply  to  all 
inherently  hazardous  employments,  including  workshops  where  machinery  is 
used.  Section  3  defines  a  workshop  as  a  place  where  power-driven  machinery 
and  manual  labor  is  used.  Where  a  janitor  in  an  office  building  was  injureu 
in  scrubbing  down  the  walls  and  floors  of  an  elevator  shaft  beneath  the 
cage,  his  rights  were  not  governed  by  the  Act.  Remsnider  v.  Union  Savings 
&  Trust  Co.,  89  Wash.  87,  154  Pac.  135. 

4  5  See  next  section. 

4  6  Benton  v.  Wilson,  Bulletin  No.  1,  111.,  p.  54. 

47  Christianson  v.  Barber,  Bulletin  No.  1,  111.,  p.  71. 

48  (Wk.  Comp.  Act,  Consol.  Laws,  c.  67,  §  2,  subd.  33)  Aylesworth  v.  Phoenix 
Cheese  Co.,  170  App.  Div.  34,  155  N.  Y.  Supp.  916. 

l^ote. — Harvesting  of  ice  was  made  a  hazardous  employment  by  the  amend- 
ment of  1916  (Laws  1916,  c.  622),  which  added  this  occupation  to  group  25. 

48  A  street  car  company,  engaged  in  the  carrying  of  passengers,  is  an  ex- 
trahazardous employer  of  labor  within  the  meaning  of  clause  3,  par.  B,  of 
section  3 ;  it  is  a  business  of  carriage  by  land  or  water,  and  loading  or 
unloading  in  connection  therewith.  Chicago  Savings  Bank  &  Trust  Co.  v. 
Chicago  Rys.  Co.,  Bulletin  No.  1,  111.,  p.  104. 

50  An  employe  standing  on  a  scaffold,  from  which  he  fell  and  was  killed, 
while  he  was  painting  a  sign  on  the  side  of  a  building,  was  engaged  in  a 
"hazardous  employment."  (Laws  N.  Y.  1914,  §  3)  In  re  Eheinwald,  168  App. 
Div.  425,  153  N.  Y.  Supp.  598. 

51  (Wk.  Comp.  Law,  §  2,  group  27)  In  re  Heitz,  218  N.  Y.  148,  112  N.  E. 
750,  affirming  (Sup.)  155  N.  Y.  Supp.  1112. 

5  2  (Wk.  Comp.  Act,  §  2,  groups  19,  41)  Dale  v.  Saunders  Bros.,  171  App.  Div. 
528,  157  N.  Y.  Supp.  1062. 


331  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION   DUB  §    103 

a  department  store  employe,^='  the  business  of  maintaining,  repair- 
ing", and  upkeep  of  the  wires  of  a  telephone  company,^*  and  the 
work  of  an  express  company's  stable  employe  on  whom  a  horse 
falls.^^  The  driver  of  a  horse-drawn  vehicle  is  covered  by  the  pro- 
visions of  the  Maryland  Act  and  is  engaged  in  an  extrahazardous 
employment.^" 

An  employer  who  comes  under  the  provisions  of  the  Illinois  Act 
either  by  election  or  operation  of  law  brings  with  him  all  his  em- 
ployes in  any  wise  connected  with  his  business,  and  not  part  only." 

The  business  of  owning  and  operating  a  loft  building  is  not  a 
hazardous  employment  under  the  New  York  Act;^^  nor  is  the 
business  of  owning  and  operating  apartment  houses. ^^  In  New 
York  it  has  been  held  that  a  wholesale  grocery  employe  engaged 
in  storing  goods  in  a  warehouse  maintained  by  his  employer  merely 
for  the  storing  of  its  own  goods  was  not  engaged  in  the  "employ- 
ment" of  "warehousing,"  ^°  that  an  employe  injured  while  en  route 

53  A  department  store  comes  within  the  Act  hy  reason  of  paragraph  (b) 
of  section  3.  Stevens  v.  Hillman's  Department  Store,  Bulletin  No.  1,  111., 
p.  17. 

5  4  (Wk.  Comp.  Act,  §  3,  par.  "b")  Anderson  v.  Ashmore  Mut.  Tel.  Co.,  Bul- 
letin No.  1,  111.,  p.  132. 

55Costello  V.  Taylor,  217  N.  Y.  179,  111  N.  E.  755,  affirming  169  App. 
Div.  905,  153  N.  Y.  Supp.  1111. 

56  (Wk,  Comp.  Act,  §  32)  American  Ice  Co.  v.  Fitzhugh,  12S  Md.  382,  97 
Atl.  9C9. 

57  Gylfe  V.  Suburban  Ice  Co.,  Bulletin  No.  1,  111.,  p.  167. 

An  employ^  doing  simply  barn  work  for  an  express  company  that  comes 
under  the  Act,  who  is  injured,  is  entitled  to  compensation,  as  the  Act  brings 
in  all  of  the  employes  or  none.  Zorcic  v.  Adams  Express  Co.,  Bulletin  No. 
1,  111.,  p.  55. 

sschappelle  v.  412  Broadway  Co.  (N.  Y.)  112  N,  E.  569,  reversing  (Sup.) 
155  N.  Y.  Supp.  858. 

5  9  Sheridan  v.  P.  J.  Grool  Construction  Co.  (N.  Y.)  112  N.  E.  568,  reversing 
(Sup.)  155  N.  Y.  Supp.  859. 

60  The  claimant  was  not  engaged  in  the  "employment"  of  "warehousing" 
at  the  time  he  sustained  his  injuries,  where  his  employer  was  not  carrying 


§  103  workmen's  compensation  332 

to  collect  bills  for  produce  and  incidentally  to  sell  produce,  if  op- 
portunity arose,  was  doing  nothing  in  connection  with  the  storing 
or  warehousing  of  his  employer's  goods,®^  and  that  a  carpenter  en- 
gaged in  repairing  a  building  in  which  his  employer  manufactured 
macaroni  was  not  engaged  in  the  hazardous  employment  of  struc- 
tural carpentry  or  repair  of  buildings ;  the  reason  assigned  in  both 
cases  being  a  statutory  provision  that  "employment  includes  em- 
ployment only  in  a  trade,  business,  or  occupation  carried  on  by  the 
employer  for  pecuniary  gain."  ®^  An  employe  injured  while  work- 
ing for  the  state  upon  a  state  highway  cannot  recover  against  the 
state  as  his  employer,  since  the  maintenance  of  the  highways  is  not 

on  the  business  of  warehousing  for  pecuniary  gain.  (Wk.  Comp.  Law,  §  3, 
subd.  5)  Mihm  v.  Hussey,  169  App.  Div.  742,  155  N.  Y.  Supp.  860.  (The  1916 
amendment  [Laws  1916,  e.  622]  changed  this  group  to  "storage  of  all  kinds 
and  storage  for  hire."  Hence  the  distinction  drawn  in  this  case  is  no  longer 
applicable.) 

An  employ^  of  a  wholesale  grocery  company,  which  maintained  a  storage 
warehouse,  was  not  engaged  in  warehousing  while  placing  barrels  of  vine- 
gar therein.    Id. 

61  Canton  v.  Bender,  The  Bulletin,  N.  T.,  vol.  1,  No.  8,  p.  12. 

6  2  If  the  employer  in  the  hazardous  employment  uses  his  regular  employ 6s 
in  doing  something  which  may  not  be  a  hazardous  employment  in  itself,  but 
the  work  is  a  part  of  his  general  employment,  and  incident  to  it,  the  employ§ 
may  be  said  to  have  received  the  injury  while  engaged  in  a  hazardous  em- 
ployment. But,  where  a  man  engages  a  carpenter  by  the  hour  to  do  some 
work  upon  his  premises  in  the  way  of  improvements,  he  is  not  engaged  in  the 
hazardous  employment  of  structural  carpentry  or  repair  of  buildings,  as  con- 
templated by  group  42  of  the  law.  Lehmann  v.  Kamo  Films,  Inc.  (Sup.)  155 
N.  Y.  Supp.  1032.  A  deceased  carpenter,  who  was  employed  casually  to  re- 
pair the  building  of  one  engaged  in  the  macaroni  and  saloon  business,  his 
employment  being  not  under  contract,  was  not  in  the  employ  of  a  company  en- 
gaged in  a  hazardous  business.  (Consol.  Laws,  c.  67)  Id.  An  employer  is 
not  liable  for  the  death  of  one  while  engaged  in  repairing  for  him  a  build- 
ing in  which  he  manufactured  macaroni.  (Workmen's  Compensation  Act,  § 
3,  subd.  5)  Id.  A  carpenter,  killed  while  repairing  a  macaroni  factory,  was 
not  an  employ^  of  company  engaged  in  a  hazardous  employment,  although 
the  making  of  macaroni  is  designated  by  the  statute  as  dangerous.  Bargey 
V.  Massaro  Macaroni  Co.,  218  N.  Y.  410,  113  N.  E.  407,  affirming  170  App.  Div. 
103,  155  N.  Y.  Supp.  1076. 


333  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUE  §    103 

a  "trade,  business,  or  occupation  carried  on  for  pecuniary  gain."  " 
Farming  is  not  a  hazardous  occupation,  nor,  where  the  farmer  en- 
gages a  painter  to  paint  his  buildings,  is  the  painting  an  occupa- 
tion carried  on  for  pecuniary  gain.«*  The  business  of  selling  glass- 
ware is  not  a  hazardous  employment  under  the  New  York  Act.«« 

The  test  of  liability  is  the  actual  work  or  occupation  in  which  the 
employe  is  engaged,  rather  than  the  business  of  the  employer." 
In  other  words,  it  is  the  fact  of  being  engaged  in  the  hazardous  em- 
ployment which  gives  a  right  to  compensation,  not  the  fact  that  the 
employer  is  "carrying  on  or  conducting  the  same,"  and  that  the  em- 
ploye is  injured  while  performing  some  incidental  duty  in  connec- 
tion with  such  employment.  Thus  a  motorman  injured  from  bemg 
struck  by  an  automobile  on  the  street  after  he  has  quit  work  for 
the  day,  and  while  on  his  way  to  have  his  watch  tested,  is  not  in- 
jured while  engaged  in  a  hazardous  employment,  though  it  is  a  con- 
dition of  his  employment  that  his  watch  be  tested.'''^  And  where 
an  employe's  principal  duty  is  to  sell  women's  clothing,  he  is  not 
engaged  in  a  "hazardous  occupation"  merely  because  he  inciden- 

63  (Wk.  Comp.  Act,  §  3,  subds.  3  and  5)  Allen  v.  State  (Sup.)  160  N.  Y. 
Supp.  85. 

64  McComsey  v.  Simmons,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  13. 

6  5  Wilson  V.  C.  Dorflinger  &  Sons,  218  N.  Y.  84,  112  N.  E.  567,  reversing  170 
App.  Div.  119,  155  N.  Y.  Supp.  857. 

66  Lyon  V.  Windsor  (Sup.)  159  N.  Y.  Supp.  162. 

Where  the  business  in  which  claimant  was  employed  as  watchman  was  a 
hazardous  business,  which  was  sometimes  in  operation  during  his  hours  of 
labor,  and  he  was  called  upon  at  times  to  perform  other  duties  than  those  of 
watchman,  and  was  injured  while  he  was  concededly  about  his  regular  du- 
ties, he  was  under  the  Act.  Fogarty  v.  National  Biscuit  Co.,  The  Bulletin, 
N.  Y.,  vol.  1,  No.  6,  p.  9.  But  where  the  employer's  business  (conducting  a 
grocery)  was  not  in  the  enumerated  list  of  hazardous  employments,  and, 
though  the  employ§  as  part  of  his  duties  was  required  to  drive  a  horse  in 
delivering,  which  would  have  brought  him  within  the  list,  he  was  not  fulfilling 
that  part  of  his  duties  at  the  time  he  was  injured,  compensation  was  denied. 
Barta  v.  Friedlander,  The  Bulletin,  N.  Y.,  vol.  1,  No.  11,  p.  11. 

6T  De  Voe  V.  New  York  State  R.  Co.,  169  App.  Div.  472,  155  N.  Y.  Supp.  12. 


§  103  workmen's  compensation  334 

tally  in  the  course  of  his  duty  goes  to  the  factory  to  obtain  gar- 
ments.®^ Likewise,  where  a  traveling  salesman  is  injured  while 
riding  in  a  public  bus  in  his  regular  occupation,  and  it  appears  that 
his  perils  are  not  increased  nor  his  safety  diminished  by  the  char- 
acter of  his  employer's  business,  he  is  not  engaged  in  a  hazardous 
business,  although  his  employer's  business  is  hazardous.®"  Under 
a  provision  designating  the  construction  and  repair  of  railways  as 
Hazardous  employment,  and  providing  compensation  for  injuries  to 
workmen  engaged  therein,  a  dependent  cannot  recover  for  the  death 
of  his  son  employed  as  a  process  server,  claim  adjuster,  and  investi- 
gator, since  his  duties  were  in  no  way  hazardous,  or  connected  with 
the  dangerous  appliances  of  the  work.'^°  But,  where  an  employe 
is  injured  while  performing  an  act  which  is  fairly  incidental  to  the 
prosecution  of  a  hazardous  business  and  appropriate  in  carrying  it 
forward  and  providing  for  its  needs,  he  or  his  dependents  are  not 
to  be  barred  from  recovery  because  such  act  is  not  a  step  wholly 
embraced  in  the  precise  and  characteristic  process  or  operation 
which  has  been  made  the  basis  of  the  group  in  which  employment 
is  claimed.'^^  For  example,  the  fact  that  an  employe  of  a  drug  man- 
es (Wk.  Comp.  Act.  §  2,  group  38)  Lyon  v,  Windsor  (Snp.)  159  N.  Y,  Supp. 
1G2. 

GO  (Wk.  Comp.  Act,  §  2,  group  32)  Mandle  v.  A.  Steinhardt  &  Bro.,  Inc. 
(Sup.)  IGO  N.  Y.  Supp.  2.  Sickles  v.  Ballston  Refrigerating  Storage  Co.,  171 
App.  Div.  108,  156  N.  Y.  Supp.  864,  is  a  similar  case. 

7  0  In  re  Brown  (Sup.)  159  N.  Y.  Supp.  1047. 

71  In  re  Larsen,  218  N.  Y.  252,  112  N.  E,  725,  affirming  169  App.  Div.  838, 
155  N.  Y.  Supp.  759. 

Where  an  employ^  at  the  time  of  his  injury  was  unloading  lumber  to  be 
used  in  the  mill  in  connection  with  some  new  machinery  for  mixing  grain, 
he  was  engaged  in  the  hazardous  employment  of  milling,  though  not  actually 
milling  grain  at  the  time  of  his  injury.  Bowne  v.  S.  W.  Bowne  Co.,  The  Bulle- 
tin, N.  Y.,  vol.  1,  No.  12,  p.  17.  That  at  the  time  of  the  injury  applicant  was 
engaged  in  moving  freight  with  a  hand  truck  did  not  prevent  him  from  being 
engaged  in  common  labor  in  and  about  dock  work.  Wiken  v.  Superior  Steve- 
dores Co.,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  88. 

But  an  employe,  hired  to  take  charge  of  theater  property,  see  to  its  stor- 
age,  bringing  to  and  removing  from  the  stage,  and  from  time  to  time  to 


335  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUE  §    103 

ufacturer  was  injured  while  building  a  shelf  for  use  in  the  business, 
and  not  while  engaged  in  the  immediate  process  of  manufacturing 
drugs  and  chemicals,  did  not  preclude  recovery  of  compensation 
where  the  shelf  was  necessary  to  the  prosecution  of  the  business. '^- 
Under  the  express  provisions  of  the  New  York  Act  it  must  be 
presumed,  in  the  absence  of  some  substantial  evidence  to  the  con- 
trary, that  the  business  conducted  by  the  employer  was  within 
the  provisions  of  the  statute  defining  hazardous  employments.^^ 
If  the  employe  is  engaged  in  employment  declared  hazardous,  but 
at  times  may  work  in  a  nonhazardous  employment,  and  the  employ- 
er fails  to  show  all  the  facts,  it  is  not  unreasonable  to  presume  that 
the  injury  is  within  the  act.^*     It  will  throw  further  light  on  the 

make  articles  of  furniture  as  tliey  were  needed,  wlio  fell  through  a  trapdoor 
while  removing  some  furniture  from  the  stage,  was  not  entitled  to  compensa- 
tion as  a  structural  carpenter  or  a  manufacturer  of  furniture,  that  not  being 
the  principal  business  of  his  employer,  the  manager  of  the  theater,  and  he 
not  being  engaged  in  such  business  at  the  time  of  his  injury.  Adler  v. 
Thomas  Hefsky  Theater  Co.,  Inc.,  The  Bulletin,  N.  ¥.,  vol.  1,  No.  11,  p.  13. 
A  wholesale  druggist  must  be  presumed  to  be  engaged  in  the  hazardous  busi- 
ness of  "manufacture  of  drugs  and  chemicals."  Larsen  v.  Paine  Drug  Co., 
169  App.  Div.  838,  155  N.  Y.   Supp.  759. 

7  2  (Wk.  Comp.  Act,  §  2,  group  28)  In  re  Larsen,  supra. 

7  3  (Wk.  Comp.  Act,  §  21)  In  re  Larsen,  supra. 

74  (Wk.  Comp.  Act,  §  21)  McQueeney  v.  Sutphen  &  Hyer,  167  App.  Div.  528, 
153  N.  Y.  Supp.  554.  Where  deceased,  at  the  time  of  his  injury,  was  putting 
meat  into  an  electric  chopper  and  forcing  it  in  with  his  fingers,  and  it  did 
not  appear  what  kind  of  meat  he  was  grinding,  or  for  what  purpose  it  was 
being  ground,  and  the  employer's  report  gave  no  further  details  of  the  mat- 
ter, though  he  knew  or  had  the  means  of  knowing  the  particular  purpose  for 
which  the  chopper  was  being  used  at  the  time  of  the  accident,  the  presump- 
tion was  that  the  injury  did  not  occur  outside  the  hazardous  employment. 
The  employer's  failure  to  disclose  matters  apparently  within  the  knowledge 
of  him  alone  raised  a  presumption  that  the  full  particulars  would  not  be  to 
his  advantage.  (Wk.  Comp.  Act,  §  21)  Kohler  v.  Frohmann,  167  App.  Div. 
533,  153  N.  Y.  Supp.  559.  It  has  been  said  that,  where  one  employed  in  a 
factory  by  persons  whose  business  was  "polishing  plate  and  window  glass, 
jobbers  and  manufacturers  of  mirrors  and  beveled  plates,"  was  injured  while 
raising  a  large  light  of  plate  glass  from  the  cutting  table,  the  presumption 
was  that  the  injury  came  within  the  statute,  though  it  did  not  appear  that 


§  103  workmen's  compensation  336 

meaning  of  the  terms  used  in  these  Acts  in  enumerating  hazardous 
employments,  particularly  the  terms  used  in  the  New  York  Act, 
to  note  that  an  assistant  hotel  chef  injured  from  the  accidental 
slipping  of  a  knife  while  he  is  distributing  meat  to  cooks  is  not  en- 
gaged in  the  "preparation"  of  meat  products ;  ''^  that  the  cutting  up 
and  beveling  of  glass,  or  making  of  looking-glasses  from  it,  may  be 
considered  a  "manufacture  of  glass  products";^®  that  the  expres- 
sion "operation"  includes  the  loading  and  unloading  of  a  truck, 
hitching  and  unhitching  of  the  horses,  feeding  and  caring  for  the 
horses,  these  acts  being  part  of  the  employment  of  operating  a 
truck,''^  and  also  one  engaged  in  loading  a  wagon  with  sand;  ''^  that 

the  glass  was  being  made  into  looking  glasses  or  beveled  glass  plates,  or  even 
was  to  be  cut  into  small-sized  plates,  and  for  all  tbat  appeared  he  may  have 
been  packing  glass  which  had  been  sold  to  a  customer  in  the  same  condition 
in  which  it  was  in  when  received  at  the  factory.  McQueeney  v.  Sutphen  & 
Hyer,  167  App.  Div.  528,  153  N.  Y.  Supp.  554. 

7  5  Wli.  Comp.  Act,  §  2,  groups  30,  33,  provide  that  the  manufacture  or  prep- 
aration of  meats  or  meat  products  and  the  canning  or  preparation  of  food- 
stuffs shall  be  deemed  hazardous  employments.  A  butcher  or  assistant  hotel 
chef,  whose  duty  it  was  to  distribute  meat  to  the  cooks  as  ordered,  and  whose 
knife  accidentally  slipped  while  he  was  holding  a  leg  of  mutton  on  the  butch- 
er block,  in  consequence  of  which  an  artery  was  severed,  resulting  in  hemor- 
rhage and  death,  was  not  within  such  Act,  since  the  word  "preparation"  does 
not  mean  ordinary  preparation  of  meat  and  foodstuffs  for  cooking  purposes, 
but  means  a  preparation  by  some  mechanical  means,  or  a  preparation  which 
either  changes  the  form  or  the  nature  so  as  to  render  the  material  suitable 
for  use.  De  La  Gardella  v.  Hampton  Co.,  169  App.  Div.  905,  153  N.  Y.  Supp. 
1112. 

7  6  (Wk.  Comp.  Act  N.  Y.  §  2,  group  20)  McQueeney  v.  Sutphen  &  Hyer,  167 
App.  Div.  528,  153  N.  Y.  Supp.  554. 

7  7  Smith  V.  Price,  168  App.  Div.  421,  153  N.  Y.  Supp.  221.  The  operation 
of  a  grocery  truck  on  a  highway  is  a  hazardous  employment,  not  only  as 
to  the  driver  of  the  truck,  but  as  to  his  helper,  where  both  men  are  necessary 
either  to  load  or  unload  the  goods  or  to  protect  them  in  transit.    (Wk.  Comp. 

7  8  The  loading  of  a  wagon  with  sand  may  constitute  the  "operation"  of 
a  vehicle  drawn  by  horses ;  the  operation  referred  to  not  being  confined 
merely  to  moving  vehicles.  (Wk.  Comp.  Act,  §  2,  group  41)  Dale  v.  Saunders 
Bros.,  171  App.  Div.  528,  157  N.  Y.  Supp.  1062,  affirmed  in  218  N.  Y.  59,  112 
N.  E.  571. 


337  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    103 

the  act  of  a  janitor  in  removing  ashes  from  a  boiler  is  as  much  a 
part  of  its  operation  as  the  splitting  of  wood  with  which  to  fire  it;  ''^ 
that  where  employes  of  a  club  were  frequently  required  to  cut 
trees  as  part  of  their  duties,  and  one  of  them  was  injured  by  having 
a  tree  fall  on  him,  he  was  subject  to  the  same  hazard  as  men  usu- 
ally are  while  "lumbering"  or  "logging" ;  ^<^  that  the  duties  of  a 
teamster  properly  include  the  loading  of  his  wagon,  and  are  not 
limited  to  the  driving  of  the  team,  and  hence  one  hired  out  by  his 
master  to  haul  sand  for  another  was  still  engaged  in  teaming  for 
his  original  employer  rather  than  in  the  operation  of  a  sand  pit 
where  he  was  loading  sand  into  the  wagon  and  a  sand  bank  fell 
on  him;^^  and  that  a  wholesale  druggist  will  be  presumed  to  be 
engaged  in  the  "manufacture  of  drugs  and  chemicals,"  ®-   and   a 

Act,  §  2,  group  41)  Hendricks  v.  Seeman  Bros.,  170  App.  Div.  133,  155  N.  T. 
Supp.  638.  "It  is  contended  that  the  helper  on  such  a  truck  is  not  one  who 
operates  the  truck.  If  the  word  "operation"  is  to  be  restricted  to  the  actual 
process  of  driving  the  truck — that  is,  steering  it  and  manipulating  the  brakes 
and  levers — then,  of  course,  the  deceased  was  not  engaged  in  the  operation 
of  this  truck.  But  no  such  narrow  construction  should  be  placed  upon  the 
expression  "operation  of  trucks."  In  order  to  operate  this  truck,  used  in  the 
wholesale  grocery  business,  the  proprietors  of  the  concern  found  it  necessary 
to  employ  two  men.  There  were  other  duties  required  of  these  men  beyond 
the  mere  matter  of  driving  the  truck.  Presumably  goods  were  to  be  load- 
ed and  unloaded  and  delivered ;  and  in  driving  through  the  streets  of  the 
city  it  was  thought  necessary  by  the  employers,  very  likely,  to  have  one  per- 
son guard  and  look  after  the  load,  to  prevent  articles  being  lost  or  stolen, 
while  the  other  person  was  driving  the  truck.  All  these  various  labors  made 
up  the  duties  of  the  men  and  constituted  the  operation  of  the  truck.  There- 
fore it  must  be  held  that  the  deceased  was  engaged  in  the  operation  of  the 
vehicle."    Id. 

7  9  Kiernan  v.  Schermerhorn,  The  Bulletin,  vol.  1,  No.  8,  p.  12. 

80  (Wk.  Comp.  Act,  §  2,  group  14)  Uhl  v.  The  Hartwood  Club,  The  Bulle- 
tm,  N.  Y.,  vol.  1,  No.  11,  p.  11. 

81  (Wk.  Comp.  Act  §  2,  group  19)  Costello  v.  Tayler,  217  N.  T.  179,  111  N.  E. 
755 ;  In  re  State  Workmen's  Compensation  Comm'n,  Dale  v.  Saunders  Bros.,  218 
N.  Y.  59,  112  N.  E.  571,  affirming  171  App.  Div.  528,  157  N.  Y.  Supp.  10G2. 

8  2  An  employer,  shown  to  be  a  wholesale  druggist,  will  be  presumed  to 
be  employed  in  the  manufacture  of  drugs  and  chemicals;    a  drug  being  any 

HoN.CoMP.— 22 


§  103  workmen's  compensation  338 

general  utility  man  in  his  employ  will  be  presumed  to  have  par- 
ticipated in  the  hazardous  work  of  handling  drugs. ^^  A  butcher's 
assistant  injured  while  going  on  foot  to  deliver  some  meat  was 
not  engaged  in  the  hazardous  employment  either  of  driving  a  horse, 
as  he  usually  did,  or  in  the  manufacture  or  preparation  of  meat,  and, 
not  being  engaged  in  a  hazardous  employment  at  the  time  of  the 
accident,  could  not  recover.^*  One  employed  by  a  gas  company 
in  a  building  as  a  range  handler  or  helper  and  required  to  assist  in 
moving  stoves  and  ranges  in  the  building,  and  to  and  from  the 
company's  wagon,  on  which  he  occasionally  rode  to  buildings  occu- 
pied by  defendant's  customers,  was  not  engaged  in  "longshore 
work,"  within  a  provision  defining  longshore  work  as  including  the 
loading  or  unloading  of  cargoes  or  parts  of  cargoes  or  moving  or 
handling  the  same  on  any  dock,  platform,  or  place,  or  in  any  ware- 
house or  other  place  or  storage,  where  at  the  time  of  his  injury  he 
was  assisting  in  removing  a  stove  from  a  wagon  into  an  elevator, 
and  had  stepped  on  the  tailboard  for  that  purpose,  when  the  tail- 
board gave  way,  causing  him  to  fall.*^  In  order  for  an  elevator  ac- 
cident to  be  compensable,  it  must  appear  that  the  elevator  was  used 
in  one  of  the  employments  classified  by  the  Act  as  hazardous. ^^ 

substance  used  for  medicine.  ("Wk.  Comp.  Act,  §  21)  Larsen  v.  Paine  Drug  Co., 
169  App.  Div.  838,  155  N.  Y.  Supp.  759. 

8  3  One  employed  by  a  wholesale  druggist  as  a  general  utility  man  will  be 
presumed  to  have  participated  at  times  in  the  hazardous  work  of  hauling 
drugs,  though  he  was  not  so  engaged  at  the  time  of  his  death.  A  general 
utility  man,  engaged  in  an  establishment  where  drugs  and  chemicals  are 
manufactured,  must  be  presumed  to  participate  more  or  less  in  the  w^ork  of 
the  establishment.  The  deceased  was  engaged  at  the  instant  of  the  accident 
in  building  a  shelf,  but  in  order  to  do  this  it  may  have  been  necessary  to 
handle  the  drugs  and  chemicals  in  the  building;  that  is,  move  them  so  as 
to  have  room  to  build  the  shelf,  and  after  it  was  built  place  them  upon  the 
shelf.    Larsen  v.  Paine  Drug  Co.,  169  App.  Div.  838,  155  N.  Y.  Supp.  759. 

8  4  Newman  v.  Newman,  218  N.  Y.  325,  113  N.  E.  332,  affirming  169  App. 
Div.  745,  155  N.  Y.  Supp.  665. 

8  5  (Wk.  Comp.  Act,  §  2,  group  10)  Gutheil  v.  Consol.  Gas  Co.  of  New  York, 
94  Misc.  Rep.  690,  158  N.  Y.  Supp.  622. 

8  6  Wilson  V.  C.  Dorflinger  &  Sons,  218  N.  Y.  84,  112  N.  E.  567. 


339  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUE  §    103 

An  elevator  which  runs  up  and  down  is  not  a  "vehicle,"  within  a 
classification  embracing  the  operation  of  vehicles  otherwise  than 
on  tracks.^''  The  University  of  Illinois,  by  reason  of  the  fact  that 
it  operated  a  freight  elevator  in  its  building,  and,  in  the  conduct 
of  its  business  enterprise,  stored,  used,  or  permitted  the  use  of  mol- 
ten metal  and  explosives,  became  a  hazardous  employer  of  labor.^*^ 
"Maintenance  of  a  structure,"  within  the  Illinois  Act,  includes  main- 
tenance of  water  mains  in  connection  with  a  waterworks  plant.^" 

Whether  a  particular  occupation  is  extrahazardous  is  not  always 
so  clear  as  to  preclude  controversy.  A  carpenter  employed  by  a 
farmer  for  no  particular  time,  but  to  continue  work  on  a  grain  crib 
until  it  is  fully  completed,  is  not  engaged  in  the  occupation  of 
"building"  or  in  what  can  be  considered  an  extrahazardous  busi- 
ness where  he  is  injured  by  a  metal  splinter  flying  from  his  ham- 
mer.^*^  A  ragpicker  working  for  a  contractor  engaged  merely  in 
combing  refuse  for  articles  of  value,  and  not  in  the  manufacture  of 
drugs  or  fertilizers,  is  not  in  the  employment  of  a  "manufacturer  of 
drugs  and  chemicals,  *  *  *  medicines,  *  *  *  fertilizers, 
including  garbage  disposal  plant,"  ^^  nor,  where  he  is  engaged  at 
the  time  of  his  injury  in  picking  rags  on  a  dump  at  the  foot  of  a 
street  from  whence  refuse  is  carried  to  sea  in  scows,  is  he  engaged 
in  "longshore  work"  declared  by  the  New  York  Act  to  be  an  extra- 
hazardous occupation. '^^  The  operation  of  a  passenger  and  freight 
elevator  in  a  mercantile  house  is  not  an  extrahazardous  or  inher- 

87  (Wk.  Comp.  Act,  §  2,  group  41)  Wilson  v.  C.  Dorfiinger  &  Sons,  21S  N.  Y. 
84,  112  N.  E.  567,  reversing  170  App.  Div.  119,  155  N.  Y.  Supp.  857. 

8  8  Nortli  V.  University  of  Illinois,  Bulletin  No.  1,  111.,  p.  63. 

8  9  Brown  v.  Decatur  (1914)  188  111.  App.  147. 

90  (Wk.  Comp.  Act,  §§  1,  3b)  Uphoff  v.  Industrial  Board  of  111.,  271  111.  312, 
111  N.  E.  128. 

91  (Wk.  Comp.  Act,  §  2,  group  28)  Tomassi  v.  Christensen,  171  App.  Div. 
284,  156  N.  Y.  Supp.  905. 

92  (Wk.  Comp.  Act,  §  2,  group  10)  Id. 


§  103  workmen's  compensation  340 

ently  dangerous  occupation  such  as  is  covered  by  this  Act.^^  An 
employe  engaged  at  the  time  of  his  death  in  driving  piles  on  the 
beach  and  aiding  in  driving  sheeting  is  engaged  in  an  extrahazard- 
ous occupation.®* 

Where  a  Washington  employer  conducts  any  department  of  his 
business  as  an  extrahazardous  business,  his  workmen  are  entitled 
to  the  protection  of  the  Washington  Act.  It  does  not  matter 
whether  such  extrahazardous  business  is  the  principal  business  or 
the  incidental  business  of  the  employer.®^  Thus  one  assisting  in 
the  installation  of  an  electric  meter  under  the  direction  of  his  su- 
perior was  engaged  in  an  extrahazardous  employment,  though  his 
usual  occupation  was  that  of  truck  driver  and  storekeeper's  help- 
er.^^  Though  this  Act  authorizes  compensation  only  to  persons 
in  hazardous  and  extrahazardous  employments,  it  is  not  essential 
that  the  injury  shall  have  arisen  out  of  the  work,®^  One  who  was 
engaged  in  managing  business  buildings,  and  as  a  department  there- 
of employed  a  maintenance  force,  was  liable  for  payment  of  pre- 
miums to  the  Washington  Industrial  Insurance  Commission;  lia- 
bility therefor  not  being  determined  by  the  character  of  the  par- 
ticular business  engaged  in,  but  attaching  to  any  department  of 
the  business  which  may  be  extrahazardous.®^  Extrahazardous  oc- 
cupations unlisted  in  this  Act  will  be  included  in  existing  classes 
whenever   possible.®®      "Construction   work"    on   tunnels    includes 

93  (Wk.  Comp.  Act,  §§  2,  4,  class  5)  Guerrieri  v.  Industrial  Insurance  Com- 
mission, 84  Wash.  266,  146  Pac.  60S. 

9  4  (Wk.  Comp.  Act,  §  2,  group  11)  Mazzarisi  et  al.  v.  Ward  &  TuUy  et  al., 
170  App.  Div.  868,  156  N.  Y.  Supp.  964. 

95  Wendt  V.  Industrial  Ins.  Com.,  80  Wash.  Ill,  141  Pac.  311,  5  N.  C.  C.  A. 
790. 

9  6  Replogle  V.  Seattle  School  Dist.,  84  Wash.  581,  147  Pac.  196. 

97  Stertz  V.  Industrial  Insurance  Commission  of  Washington  (Wash.)  158 
Pac.  256. 

9  8  State  V.  Business  Property  Security  Co.,  87  Wash.  627,  152  Pac.  334. 

99  (Wk.  Comp.  Act  Wash.  §  2)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  4. 


341  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    104 

work  done  in  constructing  a  railroad  tunnel,  though  railroad  con- 
struction work  is  given  a  separate  classification.^  The  enumeration 
of  extrahazardous  work  includes  civil  engineers  in  connection  with 
logging,  concrete  manufacture,  quarrying,  and  mining;^  also  city, 
county,  and  state  civil  engineers  engaged  in  field  work.^  A  car- 
penter was  engaged  in  an  extrahazardous  business  where  he  was 
killed  in  a  repair  shop  while  turning  on  electric  power  to  operate  a 
grindstone  and  sharpen  his  chisel.*  Such  enumeration  excludes  the 
business  of  wholesale  and  retail  handling  of  inflammable  oils.^ 
The  occupation  of  cooks  and  flunkies  is  considered  nonhazardous.® 
The  construction  of  a  manhole  from  the  surface  of  a  street  to  under- 
ground pipes  near  a  railroad  track  has  been  held  not  extrahazard- 
ous work,^  as  has  also  the  work  of  one  employed  as  a  helper  to  the 
driver  of  an  automobile  truck.* 

§  104.     Federal  Act 

The  persons  entitled  to  compensation  under  the  federal  Act  of 
1908  are  artisans  and  laborers  injured  in  the  course  of  their  em- 
ployment by  the  United  States  in  any  of  its  manufacturing  estab- 
lishments,® arsenals,^**  or  navy  yards,^^  or  in  the  construction  of 

1  State  V.  Chicago,  M.  &  P.  S.  R.  Co.,  SO  Wash.  435,  141  Pac.  897. 

2  (Wk.  Comp.  Act  Wash.  §  2)  Ruliugs  Wash.  Indus.  Ins.  Com.  1915,  p.  4. 
8  Id. 

4  Wendt  V.  Indus.  Ins.  Com.,  80  Wash.  Ill,  141  Pac.  311,  5  N.  C.  C.  A.  790. 

e  (Wk.  Comp.  Act  Wash,  §  2)  Rulings  Wash,  Indus,  Ins.  Com.  1915,  p.  4. 

6  Id, 

1  (Sess,  Laws  Wash.  1911,  p.  345)  Puget  Sound  Traction,  Light  &  Power  Co. 
V.  Schleif,  220  Fed.  48,  135  C.  C.  A,  616, 

8  Collins  V.  Terminal  Transfer  Co.  (Wash.)  157  Pac,  1092, 

»The  following  have  been  held  to  be  manufacturing  establishments:  The 
Government  Printing  Office,  where  chiefly  skilled  and  unskilled  laborers  are 
employed,  and  where  printing,  binding,  and  bookmaking  is  done  (In  re  Blaine, 
Dec.  1,  1908,  Op,  Sol,  Dept,  of  L.  p.  117;    [Dec.  Comp.  of  Treas.]     Op.   Sol. 

10  See  note  10  on  following  page.  n  See  note  11  on  page  343. 


§  104  workmen's  compensation  342 

Dept.  of  L.  779) ;  the  carpenter  shop  in  the  quartermaster's  shop  at  the  United 
States  Military  Academy,  West  Point,  N.  Y.  (In  re  McCreery,  Op.  Sol.  Dept. 
of  L.  134) ;  a  lighthouse  depot  at  which  a  material  portion  of  the  work  con- 
sists in  the  manufacture  and  repair  of  materials,  appliances,  and  vessels  (In 
re  Wygant,  Op.  Sol.  Dept.  of  L.  118) ;  the  Bureau  of  Engraving  and  Printing, 
where  ink,  paper,  and  other  materials  are  fashioned  by  workmen  into  bank 
notes,  treasury  certificates,  etc.,  and  sometimes  bound  into  book  form  (In  re 
Clark,  Op.  Sol.  Dept.  of  L.  120) ;  a  sawmill  at  Ft.  Meade,  at  which  lumber  is 
sawed  and  dressed  and  shingles  are  made  (In  re  Herron,  Op.  Sol.  Dept.  of 
L.  124) ;  a  blacksmith  shop,  at  which  bolts,  drills,  and  other  articles  and 
tools  used  in  irrigation  work  are  made  and  repaired  (In  re  Fenton,  Op.  Sol. 
Dept.  of  L.  127) ;  an  electric  light  and  power  plant  of  an  executive  depart- 
ment, at  which  ice  is  also  made  (In  re  Pyrah,  Op.  Sol.  Dept.  of  L.  129) ;  the 
mail  bag  repair  shop  of  the  Post  Office  Department,  at  which  a  variety  of 
mail  equipment  is  made  (In  re  claim  Kennedy,  Op.  Sol.  Dept.  of  L.  131) ; 
the  mechanical  plant  of  the  Smithsonian  Institution,  at  which  steam  power 
and  electric  light  are  generated,  and  cases,  cages,  and  museum  furniture  are 
made  (In  re  Strong,  Op.  Sol.  Dept.  of  L.  132) ;  a  carpenter  and  machine  shop 
connected  with  an  Indian  industrial  school  at  which  mission  furniture  is 
made  (In  re  Clarke,  Op.  Sol.  Dept.  of  D.  133);  and  an  army  quartermaster's 
depot,  at  which  clothing  and  tents  are  made,  is  a  manufacturing  establishment 
(In  re  Nicholas,  Op.  Sol.  Dept.  of  L.  12.5). 

The  following  have  been  held  not  manufacturing  establishments:  The  lo- 
cal office  of  the  Weather  Bureau  at  Detroit,  though  a  printing  press  is  there 
operated  (In  re  McAllister,  Op.  Sol.  Dept.  of  L.  121) ;  a  lighthouse  tender,  a 
vessel  attached  to  a  lighthouse  depot  and  used  in  transporting  workmen  and 
supplies,  and  in  the  placement  and  upkeep  of  aids  to  navigation  (In  re  Lam- 
bert, Op.  Sol.  Dept.  of  L.  122) ;  the  Naval  Observatory  (In  re  Lamkin,  Op. 
Sol.  Dept.  of  D.  128) ;  a  laboratory  used  only  for  making  tests  of  materials 
(In  re  Meissner,  Op.  Sol.  Dept.  of  L.  131) ;  and  an  aqueduct  and  filtration 
plant,  the  function  of  which  is  to  collect,  purify,  and  deliver  city  water  (In 
re  Schlosser,  Op.  Sol.  Dept.  of  L.  133). 

It  has  been  further  held  that  hauling  and  trucking  oats  from  car  to  dock 
by  laborer  in  Army  Quartermaster's  Department  is  not  work  in  or  in  connec- 
tion with  a  manufacturing  establishment  (In  re  Gray,  Op.  Sol.  Dept.  of  L. 
118) ;  that  the  driving  of  piles  by  an  employe  of  the  Bureau  of  Fisheries  at 
work  about  a  lobster  pound  is  not  work  done  in  a  manufacturing  establish- 
ment (In  re  Feltis,  Op.  Sol.  Dept.  of  L.  123)  ;  and  that  a  storekeeper-ganger 
of  the  Internal  Eevenue  Service  is  not  employed  in  a  manufacturing  establish- 
ment (In  re  Roberts,  Op.  Sol.  Dept.  of  L.  127). 

10  Neither  the  Naval  Observatory  (In  re  Lamkin,  Op.  Sol.  Dept.  of  L.,  128), 
nor  the  Military  Academy  at  West  Point,  is  an  arsenal  (In  re  Mackay,  Op. 
Sol.  Dept.  of  L.  136).  Caii^enter  work  on  an  icehouse  for  Ft.  Robinson,  a 
mile  distant,  is  not  work  in  an  arsenal.    In  re  Olson,  Op.  Sol.  Dept.  of  L.  136. 


343  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    104 

river  and  harbor  or  fortification  work/^  or  in  hazardous  employ- 
ment of  construction  work  in  the  reclamation  of  arid  land  or  the 

11  The  Naval  Academy  at  Annapolis  is  a  navy  yard  (In  re  Brown,  Op.  Sol. 
Dept.  of  L.  137),  as  is  also  the  naval  experiment  station  at  Annapolis  (In  re 
Bullard,  Op.  Sol.  Dept.  of  L.  140)  ;  but  a  naval  observatory  is  not  (In  re 
Lamkin,  Op.  Sol.  Dept.  of  L,  128). 

An  employe  at  a  naval  station,  also  designated  a  coaling  depot,  is  employed 
in  a  navy  yard  (In  re  Burke,  Op.  Sol.  Dept.  of  L.  139),  as  is  also  a  gardener 
at  a  naval  training  station  (In  re  Pangburn,  Op.  Sol.  Dept.  of  L.  138) ;  but  a 
laundress  at  a  naval  home— an  asylum  for  disabled  navy  officers,  seamen, 
and  marines— is  not  employed  in  a  navy  yard  (In  re  Carey,  Op.  Sol.  Dept.  of 
L.  139). 

12  An  artisan  repairing  cables  in  the  underground  electric  system  at  Ft. 
Adams  is  engaged  in  the  construction  of  fortification  work,  which  refers  to 
work  authorized  by  the  fortification  appropriation  acts.  In  re  Buzby,  Op.  Sol. 
Dept  of  L.  c.  141.  A  machinist  working  on  gun  carriages  at  a  seacoast  forti- 
fication, though  under  the  Ordnance  Department  rather  than  the  Engineer 
Department,  is  engaged  in  the  construction  of  fortification  work.  In  re 
Moore,  Op.  Sol.  Dept.  of  L.  143.  Claimant  was  employed  as  carpenter  in  the 
Quartermaster  Department  of  the  War  Department  at  Ft.  Clark,  Tex.,  when 
his  eyes  were  injured  by  the  reflection  of  the  sun  from  the  white  rocks  and 
white  sand.  It  was  held  that  the  place  of  employment  properly  came  under 
the  designation  of  "construction  of  *  *  *  fortification  work."  (This  opin- 
ion alters  the  former  holding  on  this  subject  in  the  cases  of  James  Ryan  and 
W.  E.  Burgess.)  In  re  Kearney,  Op.  Sol.  Dept.  of  L.  147.  A  laborer  on  the 
United  States  dredge  Dalecarlia,  while  engaged  in  reclamation  woi-k  in 
Anacostia  river,  funds  for  which  were  appropriated  by  Congress,  the  District 
of  Columbia  reimbursing  the  general  government  for  one-half  the  expenses 
of  such  work,  was  employed  in  the  construction  of  river  and  harbor  work 
within  the  meaning  of  the  Act.  In  re  Bristow,  Op.  Sol.  Dept.  of  L.  150.  Work 
or  duties  performed  in  an  establishment  not  expressly  included  in  the  act, 
though  similar  to  those  performed  in  an  establishment  which  is  expressly 
included,  does  not  of  itself  bring  the  former  place  within  its  provisions.  Engi- 
neer of  steamer  attached  to  Key  West  Barracks,  Fla.,  not  entitled  to  compen- 
sation as  being  engaged  in  construction  of  river  and  harbor  or  fortification 
work.  In  re  Jerman,  Op.  Sol.  Dept.  of  L.  152.  The  Washington  (D.  C.) 
Aqueduct,  Great  Falls,  Md.,  though  under  control  and  supervision  of  the 
Office  of  the  Chief  of  Engineers,  War  Department,  is  not  comprehended  within 
the  term  "in  the  construction  of  river  and  harbor  or  fortification  work."  In 
re  Rollins,  Op.  Sol.  Dept.  of  L.  153.  A  laborer  employed  at  Ft.  Huachuca, 
Ariz.,  in  a  rock-crushing  plant  used  to  crush  rock  for  the  preparation  of  con- 
crete required  in  new  construction  work  at  that  post,  is  engaged  in  the  con- 


§  104  workmen's  compensation  344 

management  and  control  of  the  same/'  or  in  hazardous  employ- 
ment under  the  Isthmian  Canal  Commission,^*  As  a  matter  of 
course,  government  employes  not  within  the  terms  of  the  Act,  either 
specifically  or  by  necessary  implication,  are  not  entitled  to  compen- 
sation,^^   Persons  rendering  services  chiefly  of  a  domestic  and  non- 

struction  of  fortification  work.  In  re  Montes,  Op,  Sol,  Dept.  of  L.  153.  Car- 
penter work  on  an  iceliouse  for  Ft,  Robinson,  a  mile  distant,  is  not  done 
in  the  construction  of  fortification  work ;  the  "construction"  of  such  work 
does  not  include  the  erection  of  an  ice  plant.  In  re  Olson,  Op.  Sol,  Dept.  of 
L.  141. 

13  A  machine  attendant  at  the  ice  plant  of  the  Roosevelt  Dam  is  engaged 
in  hazardous  employment  (In  re  Riggs,  Op.  Sol,  Dept.  of  L,  155),  as  is  also  a 
ditch  rider,  required  to  ride  at  night  and  discover  and  attend  to  breaks  in  a 
canal  (In  re  Redburn,  Op.  Sol.  Dept.  of  L.  154),  and  one  employed  in  a  branch 
of  the  forestry  service  under  the  Indian  Office  of  the  Interior  Department 
(In  re  Ives,  March  10,  1915,  Op.  Sol,  Dept.  of  L.  p,  175).  But  a  clerk  em- 
ployed at  a  soda  fountain  in  a  store  under  the  Reclamation  Service  is  not 
engaged  in  hazardous  employment  (In  re  Arnold,  Op.  Sol,  Dept.  of  L.  158), 
nor  is  a  cook's  helper,  working  in  cooking  quarters  (In  re  Jones,  Op,  Sol. 
Dept.  of  L.  155). 

Work  authorized  by  Act  March  1,  1907,  to  construct  a  reservoir  for  storing 
water  for  irrigating  lauds  on  an  Indian  reservation  is  construction  work  in 
the  reclamation  of  arid  lauds  (In  re  Arnold,  Op.  Sol.  Dept.  of  L.  156),  as  is 
also  work  in  a  quarry  to  obtain  rock  for  damming  the  Colorado  river  to  pro- 
tect a  valley  and  supply  water  for  irrigation  (In  re  Skill,  Op.  Sol.  Dept.  of  L. 
157). 

i-t  The  following  were  engaged  in  hazardous  employment:  A  policeman 
employed  in  the  Isthmian  Canal  Zone  (In  re  Golden,  Op.  Sol.  Dept.  of  L.  159)  ; 
a  laborer  with  a  gang  at  work  clearing  ground,  using  a  machete  in  cutting 
trees  (In  re  Pedez,  Dec.  17,  1910,  Op.  Sol.  Dept.  of  L.  171);  a  time  inspector 
required  to  attend  men  occupied  in  actual  construction  work  of  Isthmian 
Canal  (In  re  Van  Sittert,  Op.  Sol.  Dept.  of  L.  169);  a  water  boy  serving 
water  to  men  employed  in  actual  construction  work  of  Isthmian  Canal  (In 
re  Garsia,  Op.  Sol,  Dept.  of  L.  166)  ;  a  hospital  orderly  in  attendance  upon 
persons  violently  insane  (In  re  Small,  Oct.  13.  1909,  Op.  Sol.  Dept.  of  L.  164); 
a  plumber  and  tinner  working  on  roofs  and  stacks  (In  re  Thennard,  Op.  Sol. 
Dept.  of  L.  167)  ;  and  an  ambulance  teamster  in  the  Canal  Zone  (In  re 
Thompson,  Op.  Sol.  Dept.  of  L.  165). 

15  In  re  Fernandez,  Op.  Sol.  Dept.  of  L.  187. 

A  skilled  laboi*er  employed  in  the  office  of  the  Supervising  Architect  of  the 
Treasury  Department  is  not  covered  by  the  Act,  as  that  branch  of  the  service 


345  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION  DUB  §    104 

hazardous  character  are  not  entitled  to  compensation. ^«     An  em- 
ploye of  a  manufacturing  establishment  is  entitled  to  compensation, 

was  not  included,  either  specifically  or  by  implication.    In  re  Briscoe,  Op.  Sol. 
Dept.  of  L.  776. 

Persons  not  entitled  to  compensation:  A  carpenter  working  on  improvements 
to  the  water  supply  system  at  West  Point.  In  re  Mackay,  Op.  Sol.  Dept.  of  L. 
176.  A  rural  mail  carrier.  In  re  Morgan,  Op.  Sol.  Dept.  of  L,  177.  A  line- 
man employed  by  the  Signal  Corps  of  the  Army.  In  re  Lawrence,  Op.  Sol. 
Dept.  of  L.  178.  An  elevator  conductor  in  a  local  federal  building.  In  re 
Cassidy,  Op.  Sol.  Dept.  of  L.  ISO.  An  electrician's  helper  employed  in  an 
executive  department  at  Washington.  In  re  Fowler,  Op.  Sol.  Dept.  of  L.  ISO. 
A  stevedore  employed  in  the  army  transport  service.  In  re  Hogan,  Op.  SoL 
Dept.  of  L.  ISO.  A  laborer  in  a  local  custom  house.  In  re  Washington,  Op. 
Sol.  Dept.  of  L.  181.  A  painter  employed  by  an  Indian  agent  at  an  Indian 
school.  In  re  Cadwalader,  Feb.  15,  1909,  Op.  Sol.  Dept.  of  L.  182.  A  laborer 
employed  in  painting  at  an  army  barracks.  In  re  Posey,  Op.  Sol.  Dept.  of 
L.  183.  A  launch  operator  in  the  Quartermaster's  Department  of  the  War 
Department.  In  re  Eaton,  Op.  Sol.  Dept.  of  L.  183.  A  deck  hand  on  a  vessel 
attached  to  Governor's  Island,  N.  Y.  In  re  Cowan,  Op.  Sol.  Dept.  of  L.  184. 
A  laborer  employed  at  a  national  park.  In  re  Johnson,  Op.  Sol.  Dept.  of  L. 
185.  A  laborer  employed  in  the  construction  of  a  power  plant  in  the  congres- 
sional buildings.  In  re  Smith,  Op.  Sol.  Dept.  of  L.  186.  A  powder  man  em- 
ployed by  the  Government  Road  Commission  of  Alaska.  In  re  McCormick,  Op. 
Sol.  Dept.  of  L.  186.  A  quartermaster  on  a  lighthouse  tender  (law  since 
amended,  Dec.  11,  1909,  No.  2206).  In  re  Yeseth,  Op.  Sol.  Dept.  of  L.  1S5.  A 
seaman  on  a  vessel  of  the  Naval  Auxiliary  Service.  In  re  Evenson,  April  30, 
1912,  Op.  Sol.  Dept.  of  L.  187.  A  laborer  employed  by  the  United  States  in 
the  work  of  raising  the  Maine.    In  re  Fernandez,  Op.  Sol.  Dept.  of  L.  187. 

16  In  re  Reisinger,  Op.  Sol.  Dept.  of  L.  161. 

Persons  not  engaged  in  hazardous  employment:  A  janitor  rendering  serv- 
ices chiefly  of  a  domestic  character.  In  re  Jarvis,  Op.  Sol.  Dept.  of  L.  174.  A 
cook  in  a  hotel  kitchen.  In  re  Reisinger,  Op.  Sol.  Dept.  of  L.  161.  A  laborer 
employed  in  a  mess  hall  under  the  Quartermaster's  Department,  Canal  Zone. 
In  re  Traviso,  Op.  Sol.  Dept.  of  L.  161.  A  scytheman  in  a  grass-cutting  gang. 
In  re  Migeles,  Op.  Sol.  Dept.  of  L.  162.  A  scavenger  occupied  in  collecting 
garbage  and  hauling  it  away  in  carts.  In  re  Gill,  Op.  Sol.  Dept.  of  L.  170. 
A  hospital  laborer  performing  the  manual  service  usual  about  a  hospital.  In 
re  Renwick,  Op.  Sol.  Dept.  of  L.  172.  A  cemetery  laborer,  wheeling  stone  in  a 
barrow.  In  re  Carney,  Op.  Sol.  Dept.  of  L.  173.  A  laborer  on  a  delivery 
wagon.  In  re  Palacios,  Op.  Sol.  Dept.  of  L.  162.  A  telephone  operator.  In  re 
Etienne,  Op.  Sol.  Dept.  of  L.  163.     A  water  boy  delivering  water  to  grass- 


§  105  workmen's  compensation  346 

though  at  work  elsewhere  at  the  time  of  injury,^''  and  not  engaged 
in  manufacturing  operations. ^^  A  navy  yard  employe,  though  in- 
jured while  at  work  on  a  naval  hospital  outside  the  yard,  is  em- 
ployed in  a  navy  yard.^® 


Division  II. — Arising  in  the  Course;  of  Employment 

§  105.     In  general 

It  is  essential  to  the  right  to  compensation  that  the  injury  shall 
have  been  received  in  the  course  of  the  workman's  employment; 
that  it  shall  have  been  received  while  he  was  doing  some  act  rea- 
sonably incidental  to  his  work.^°  An  accident  or  injury  is  so  re- 
ceived where  it  occurs  while  he  is  doing  what  a  man  in  like  employ- 
ment may  reasonably  do  within  a  time  during  which  he  is  so  em- 
ployed, and  at  a  place  where  he  may  reasonably  be  during  that 
time.^^  "Course  of  employment"  includes  acts  in  which  the  em- 
cutting  gangs  at  work  about  various  commission  properties.  In  re  Price,  Op. 
Sol.  Dept.  of  L.  163.  A  storeroom  clerk.  In  re  Inuiss,  Op.  Sol.  Dept.  of  L. 
160. 

17  In  re  Melling,  Op.  Sol.  Dept.  of  L.  129. 

18  In  re  Nicolas,  Op.  Sol.  Dept.  of  L.  125. 
18  In  re  Blount,  Op.  Sol.  Dept.  of  L.  137. 

20  Edgley  v.  Firth,  1  Cal.  I.  A.  C.  Dec.  651 ;  Gallup  v.  City  of  Pomona,  1 
Cal.  I.  A.  C.  Dec.  242 ;  Moor  v.  Manchester  Liners,  Ltd.  (1910)  3  B.  W.  C.  C. 
529. 

Under  the  provisions  of  section  21  of  article  20  of  the  Constitution,  it  is 
only  injuries  incurred  by  an  employ^  "in  the  course  of"  the  employment,  that 
the  Legislature  may  commit  to  a  state  Industrial  Accident  Board  the  power 
to  redress.    McCay  v.  Bruce,  2  Cal.  I.  A.  C.  Dec.  975. 

21  Bryant  v.  FisseU,  84  N.  J.  Law,  72,  86  Atl.  458. 

An  injury  occurs  in  the  course  of  the  employment,  when  it  occurs  within 
the  period  of  employment  at  a  place  where  the  employe  may  reasonably  be, 
and  while  he  is  fulfilling  the  duties  of  his  employment,  or  engaged  in  doing 
something  incidental  to  it.  Larke  v.  John  Hancock  Mut.  Life  Ins.  Co.,  90 
Conn.  303,  97  Atl.  320. 

"In  the  course  of"  points  to  the  place  and  circumstances  under  which  the 


347  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUE  §    105 

accideut  takes  place  and  the  time  when  it  occurred.  Fitzgerald  v.  Manchester 
Liners,  Ltd.,  [1910]  A.  C.  498,  500 ;  McNicol's  Case,  215  Mass.  497,  102  N.  E. 
G97,  L.  R.  A.  1916A,  306;  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458,  460; 
Larke  v.  John  Hancock  Mut.  Life  Ins.  Co.,  90  Conn.  303,  97  Atl.  320. 

A  park  caretaker  was  acting  within  the  scope  of  his  employment,  where 
he  was  mowing  grass  on  the  street  outside  the  park  area,  according  to  custom 
and  under  directions  of  the  park  commissioners,  and  it  appeared  that  the 
work  was  within  the  scope  of  the  work  authorized  by  a  city  ordinance. 
Superior  v.  Indus.  Com.,  160  Wis.  541,  152  N.  W.  151,  8  N.  C.  C.  A.  960. 

Accidents  and  injuries  held  to  have  hecn  in  the  course  of  employment: 
Where  an  employe  who  had  gained  permission  to  ride  in  his  employer's  eleva- 
tor was  thrown  against  the  opposite  wall  of  a  hall  in  getting  off,  which  acci- 
dent caused  a  strangulated  hernia.  Herrick  v.  Employers'  Liability  Assurance 
Co.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  122  (decision  of  Com.  of  Arb.,  affirmed  by 
Indus.  Ace.  Bd.,  also  by  Sup.  Jud.  Ct.,  217  Mass.  Ill,  104  N.  E.  432).  Where 
the  employ^,  a  chocolate  packer,  was  obliged  by  her  employer  to  work  in  a 
packing  room  where  the  temi^ei'ature  ranged  from  60°  to  65°  Fahr.  and  facial 
paralysis,  developing  gradually,  resulted  from  the  employment  conditions. 
Dalton  V.  Employers'  Liability  Assur.  Corp.  Ltd.,  2  Mass.  Wk.  Comp.  Cases, 
231  (decision  of  Com.  of  Arb.).  Where  the  employe  received  a  fatal  injury 
while  cranking  a  coal  delivery  wagon,  the  strain  of  his  effort  in  turning  the 
crank  causing  a  small  blood  vessel  to  break  in  the  pial  membrane  of  the 
brain.  Farrell  v.  Casualty  Co.  of  America,  2  Mass.  Wk.  Comp.  Cases,  423 
(decision  of  Com.  of  Arb.).  Michigan.  Where  a  section  foreman  was  run 
over  by  a  train.  Papinaw  v.  Grand  Trunk  Ry.  Co.  (Mich.)  155  N.  W.  545. 
Minnesota.  Where  a  teamster  employed  to  deliver  furniture  was  driving 
along  the  street  with  a  load  of  furniture,  and  was  killed  by  a  heavy  load  of 
steel  beams  which  broke  the  hoisting  apparatus  on  a  building  under  construc- 
tion and  fell  upon  him.  Mahowald  v.  Thompson-Starrett  Co.  (Minn.)  158  N. 
W.  913.  New  York.  Where  an  employe  worked  continuously  for  21  hours, 
except  lYz  hours  off  for  meals,  during  which  time  he  had  to  climb  216  steps 
three  different  times,  besides  being  on  his  feet  most  of  the  time,  and  was 
found  dead  in  his  chair  in  a  saloon  a  half  hour  after  quitting,  death  being  due 
to  angina  pectoris.  McMurray  v.  J.  J.  Little  &  Ives  Co.,  3  N.  Y.  St.  Dep.  Rep. 
395.  New  Jersey.  Where  a  workman  with  two  others  was  pulling  a  hand 
chain  connected  with  a  block  operating  a  mechanism  which  caused  a  lifting 
chain  to  pass  through  the  block  and  lift  a  steel  girder,  and  the  lifting  chain 
became  clogged,  and,  being  forced  through,  split  the  block,  and  the  workman 
was  struck  and  injured.  Scott  v.  Payne  Bros.  Inc.,  85  N.  J.  Law,  446,  89  Atl. 
927.  California.  Where  a  bowling  alley  has  the  pins  set  up  in  its  alleys  by 
boys,  who  work  irregularly  as  they  may  happen  to  be  present  and  needed, 
and  who  receive  as  pay  25  per  cent,  of  the  sum  collected  from  the  games  which 
they  respectively  serve,  and  such  boys  are  injured  while  setting  pins.  Weaver 
V.  Eyster  &  Stone,  1  Cal.  I.  A.  C.  Dec.  563.  Where  a  night  watchman,  while 
making  his  rounds  through  the  premises,  fell  through  an  opening  in  the  floor 


§  105  workmen's  compensation  348 

to  the  floor  below,  and  was  killed.  Carter  v.  Hume-Bennett  Lumber  Co.,  2 
Cal.  I.  A.  C.  Dec.  42.  Where  an  employe  was  directed  to  polish  brass  rails  in 
the  engine  room  of  a  vessel,  and  went  inside  the  railing  the  better  to  perform 
his  task,  although  going  inside  the  rail  was  attended  by  some  danger,  and 
was  injured  by  falling  into  the  machinery.  Rose  v.  North  Pacific  Steamship 
Co.,  2  Cal.  I.  A.  C.  Dec.  57.  Where  a  physician,  hired  to  give  medical  treatment 
to  incapacitated  employes  of  a  manufacturing  concern,  was  injured  while  re- 
turning from  a  visit  to  an  ailing  person  who  he  had  been  led  to  believe  was 
an  employe  of  such  concern,  but  who,  in  fact,  had  not  yet  been  put  upon  the 
pay  roll,  though  assigned  to  a  job.  GetzlafC  v.  Enloe,  3  Cal.  I.  A.  C.  Dec.  18. 
Where  a  janitor,  without  specific  instructions,  puts  up  shelves  for  his  greater 
convenience,  and  in  preparing  the  shelving  uses  a  band  saw  and  sustains 
injuries,  consisting  in  the  loss  of  a  thumb  and  finger;  such  service  being  one 
which  any  employe  might  reasonably  perform,  even  in  the  absence  of  specific 
instructions,  and  the  performance  of  it  being  incidental  to  his  duties.  Mead- 
dows  V.  Smith  Bros.,  2  Cal.  I.  A.  C.  Dec.  344.  Where  a  "spieler,"  whose  duties 
were  to  attract  and  persuade  the  crowd  to  attend  his  employers'  amusement 
show,  was  bitten  and  poisoned  by  a  "Gila  monster"  he  was  exhibiting.  Mer- 
ritt  V.  Clark  &  Snow,  Inc.,  2  Cal.  I.  A.  C.  Dec.  983.  Where  the  employe 
engaged  by  a  corporation  to  inspect  the  work  of  a  general  contractor  in  the 
construction  of  a  tunnel,  upon  the  lights  going  out,  went  into  the  trans- 
former house  to  ascertain  what  the  trouble  was,  it  appearing  that,  although 
he  had  no  knowledge  of  electricity,  his  duties  required  him  to  report  any 
unusual  condition  he  might  find,  and  was  accidentally  killed  by  unprotected 
wires.  Duden  v.  City  and  County  of  San  Francisco,  2  Cal.  I.  A.  C.  Dec.  1067. 
Illinois.  Where  an  employ^,  engaged  as  a  wagon  washer,  had  cranked  auto- 
mobiles at  the  instance  of  the  machinist,  and  a  number  of  times  in  the  pres- 
ence of  the  foreman,  without  objection,  and  was  injured  while  so  cranking 
the  machine.  Cromowy  v.  Sulzberger  &  Sons  Co.,  Bulletin  No.  1,  111.,  p.  37. 
Where  a  miner  working  in  the  mines  inhales  poisonous  gases  which  cause  his 
death.  Giacobbia  v.  Kerno-Domewald  Coal  Co.,  Bulletin  No.  1,  111.,  p.  196. 
Where  an  employ§,  whose  duty  and  custom  it  was  to  do  whatever  was  found 
necessary  to  be  done  in  a  shop,  was  injured  in  the  performance  of  his  work. 
Whaley  v.  Hudson,  Bulletin  No.  1,  111.,  p.  186.  Connecticut.  Where  the  claim- 
ant's husband,  an  insurance  collector  and  agent,  was  run  down  and  killed  by 
an  automobile  when  about  to  board  a  car  for  the  purpose  of  keeping  an 
appointment  and  making  a  collection,  after  having  just  left  another  house 
where  he  collected.  McKay  v.  Metropolitan  Life  Insurance  Co.,  1  Conn.  Comp. 
Dec.  380.  Where  a  watchman  aggravated  the  pain  in  a  frozen  toe  by  stubbing 
it,  and,  becoming  unconscious,  fell  on  the  stone  floor,  sustaining  bruises  of  the 
back  which  developed  into  an  abscess,  causing  disability.  Dorrance  v.  New 
England  Pin  Co.,  1  Conn.  Comp.  Dec.  24  (aOirmed  by  superior  court  on  appeal). 
Where  a  church  sexton,  part  of  whose  admitted  duties  was  to  preserve  order 
on  the  church  premises,  was  injured  by  stumbling  over  a  wheelbarrow  while 
going  to  stop  a  fight  between  two  boys  on  the  grounds.     Loveland  v.  Parish 


349  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUB  §    105 

ployer  has  acquiesced,  though  they  are  not  done  in  a  strict  perform- 
ance of  the  employe's  duties. ^^    An  employe  is  not,  like  a  part  of  a 

of  St.  Thomas  Church,  1  Conn.  Comp.  Dec.  14.  Where  an  iron  har  fell  on  the 
workman's  foot  while  he  was  taking  an  inventory  for  his  employer  on  a  holi- 
day. Reese  v.  Yale  &  Towne  Mfg.  Co.,  1  Conn.  Comp.  Dec.  154.  Ohio.  Where 
a  father  and  his  son  were  employed  by  a  land  company,  the  father's  duty 
being  to  care  for  a  small  barn  and  the  horses  stabled  therein,  to  feed  and 
clean  them  and  hitch  them  up  for  the  farm  foreman,  milk  the  cows,  mow  the 
lawns,  and  do  other  work  as  he  was  directed  to  do  by  the  officers  or  foreman 
of  the  land  company,  and  the  son's  duty  being  to  take  care  of  a  large  barn, 
in  which  were  stabled  about  36  horses  and  a  Jersey  bull,  it  being  the  son's 
duty  to  feed  and  care  for  the  stock,  clean  the  stable,  and  do  anything  he  was 
directed  to  do  by  the  officers  of  the  land  company  or  its  foreman,  and  in  the 
performance  of  their  respective  duties  the  father  and  son  occasionally  as- 
sisted each  other  with  the  knowledge  and  acquiescence  of  the  land  company 
and  its  officers,  and  the  father  was  found  unconscious  and  fatally  injured  in 
the  barn  of  which  the  son  had  supervision,  his  ribs  being  hrokeu  and  breast 
crushed.  White  v.  Scioto  Land  Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com. 
Federal.  Where  the  employ^,  with  others,  was  furnished  living  quarters  on 
a  boat  by  the  government,  and  fellow  employes  who  had  been  on  shore  were 
returning  for  the  night,  and  decedent  started  to  get  them  in  a  small  boat,  and 
was  drowned.  In  re  House,  Jan.  1914,  Op.  Sol.  Dept.  of  L.  325.  England. 
Where  a  ship's  watchman  was  found  drowned  in  the  dock,  the  ambit  of  his 
employment  covering  both  the  ship  and  the  quay.  Richardson  v.  Ship  Avon- 
more  (Owners  of),  (1912)  5  B.  W.  C.  C.  34,  C.  A. 

Accidents  not  in  course  of  employment :  Where  the  members  of  a  partner- 
ship entered  into  a  contract  with  a  person  to  install  certain  machinery  at  his 
own  expense  and  one  of  the  partners  living  at  the  place  of  business  aiding  in 
unloading  a  wagon  containing  machinery,  billed  to  the  contractor,  and  was 
accidentally  injured  while  so  doing.  Anderson  v.  Perew,  2  Cal.  I.  A.  C.  Dec. 
736.  Where  an  employ^,  after  receiving  a  slight  injury,  to  which  bandages 
soaked  in  turpentine  were  applied,  accidentally  set  fire  to  the  bandages  while 
lighting  his  pipe.  Isaacson  v.  White  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  819. 
Where  the  claimant  had  a  blister  form  on  his  index  finger  while  about  his 
employment,  and  subsequently,  while  mending  a  pair  of  shoes  at  home,  the 
awl  which  he  was  using  slipped  and  penetrated  the  finger,  and  blood  poisoning 
resulted.  Palmeri  v.  Greist  Mfg.  Co.,  1  Conn.  Comp.  Dec.  6G9.  Where  the 
medical  evidence,  though  conflicting,  tended  strongly  to  show  that  indigestion 
and  gastritis,  from  which  the  claimant  was  suffering,  were  probably  never 
due  to  muscular  strain,  as  claimed  by  the  workman  and  his  physician.  Graves 
V.  Connecticut  Mills  Co.,  1  Conn.  Comp.  Dec.  657. 

22  Where  an  employe  of  a  "scenic  railway"  in  an  amusement  park  goes  up 
on  a  framework  to  look  for  a  hat  lost  by  a  passenger,  it  being  the  proprie- 


§  105  workmen's  compensation  350 

machine  operated  by  him,  fixed  to  precisely  the  mechanical  move- 
ments he  must  perform  in  order  to  discharge  his  industrial  function. 
He  may  do  whatever  a  human  being  may  reasonably  do  while  in 
the  performance  of  his  duty  without  such  acts  placing  him  outside 
of  the  course  of  his  employment.^ ^  When  an  injury  arising  from  a 
risk  of  the  business  is  suffered  while  the  employe,  though  not 
strictly  in  the  line  of  his  obligatory  duty,  is  still  doing  something 
incidental  to  the  performance  of  his  work,  in  going  to  or  from  the 
work  or  in  the  necessary  intervals  of  a  discontinuous  employment, 
he  will  ordinarily  be  entitled  to  compensation.^*     Other  necessary 

tor's  custom  to  allow  such  practices  for  the  accommodation  of  patrons  and 
so  that  his  employes  may  secure  rewarJs,  and  while  so  doing  the  employ^ 
is  accidentally  struck  by  a  car  and  killed,  the  accident  happened  in  the 
course  of  his  employment.  Lane  v.  Joyland  Co.,  Inc.,  2  Cal.  I.  A.  C.  Dec.  872. 
Where  a  stableman  required  to  act  as  watchman  and  protect  his  employer's 
property  against  intruders,  it  being  situated  where  trouble  might  occur,  al- 
though the  employer  had  neither  authorized  nor  forbidden  hun  to  carry  or 
use  a  pistol  for  that  purpose,  was  accidentally  shot  while  cleaning  a  pistol 
which  he  had  procured  for  his  own  protection  in  the  performance  of  his 
duties,  the  accident  arose  in  the  course  of  the  employment.  Benson  v.  Hutch- 
inson C,  2  Cal.  I.  A.  C.  Dec.  901. 

2  3  Bode  V.  Shreve  &  Co.,  1  Cal.  I.  A.  C.  Dec.  6. 

Where  a  workman's  hand  was  crushed  when  he  attempted,  while  engaged 
in  operating  a  triphammer,  to  remove  a  tin  can  placed  on  the  lower  die  by 
a  bystander,  his  injury  arose  in  the  course  of  his  employment,  though  the 
bystander  placed  the  can  on  the  die  for  fun,  in  which  the  injured  workman 
took  no  part.  (Workmen's  Compensation  Act,  §  1)  Knopp  v.  American  Car 
&  Foundry  Co.,  186  111.  App.  605. 

2  4  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  116,  96  Atl.  368;  (St.  1911, 
§  2394 — 10)  International  Harvester  Co.  v.  Industrial  Commission,  157  Wis. 
167.  147  N.  W.  53,  Ann.  Cas.  1916B,  330. 

Where  a  workman  employed  on  a  subway  almost  continually  for  eight 
months  was  told  by  his  foreman,  on  appearing  ready  for  work  on  a  certain 
morning,  that  he  need  not  work  that  day,  the  foreman  thinking  him  to  be 
intoxicated  and  in  a  condition  unfit  for  work,  and  where  he  tripped  and  fell 
while  leaving  the  subway,  he  was  a  regular  employ^,  in  the  performance  of 
his  duties,  and  entitled  to  compensation.  Kiernan  v.  Priestedt  Underpinning 
Co.,  171  App.  Div.  539,  157  N.  T.  Supp.  900. 

Physician  injured. — Where  a  physician,  under  contract  to  attend  the  in- 
capacitated employes  of  a  manufacturing  concern,  is  injured  while  return- 


351  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUE  §    105 

conditions  being  present,  an  injury  is  compensable  when  received 
by  the  employe  while  guarding  or  protecting  the  employer's  prop- 
erty,"^ enforcing  his  authority  as  foreman,^®  taking  care  of  horses 

ing  from  a  visit  to  sucli  an  employ^,  tlie  injury  is  sustained  in  the  course  of 
the  employment,  although  he  intended  to  and  did  avail  himself  of  the  same 
trip  as  a  convenient  occasion  to  treat  a  private  patient,  since  the  trip  de- 
rived its  character  from  its  main  purpose  of  treating  a  contract  patient. 
GetzlafC  v.  Enloe,  3  Cal.  I.  A.  C.  Dec.  18. 

2  5  Accid&iits  luere  in  the  course  of  the  employment:  Where  a  mill  super- 
intendent, in  pursuance  of  his  general  duties  of  ordering  trespassers  off  the 
premises  and  in  executing  special  instructions  to  the  same  effect,  was  shot 
and  killed  by  a  trespasser.  In  re  Reithel,  222  Mass.  163,  109  N.  E.  951,  L. 
R.  A.  191GA,  304.  Where  a  night  watchman  was  injured  during  working 
hours,  at  a  place  where  he  was  accustomed  to  go  in  performing  his  duties, 
from  being  shot  by  officers  who  mistook  him  for  a  robber.  In  re  Harbroe, 
223  Mass.  139,  111  N.  E.  709.  Where  a  night  watchman  is  murdered  by 
burglars  whom  he  has  surprised  on  the  premises  of  his  employer.  Mason 
v.  Western  Metal  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  284.  Where  a  city  marshal 
was  murdered  by  persons  whom  he  is  seeking  to  arrest  as  suspicious  char- 
acters. 

Colson  V.  City  of  Burbank,  2  Cal.  I.  A,  C.  Dec.  127.  Where  a  bartender  is 
shot  dead  upon  his  refusal  to  throw  up  his  hands  at  the  order  of  two  hold- 
up men  attempting  to  rob  a  saloon  at  midnight,  and  while  the  bartender  was 
trying  to  reach  the  adjoining  room  to  get  a  revolver.  Henning  v.  Heuning, 
2  Cal.  I.  A.  C.  Dec.  733.  Where  a  night  watchman,  while  in  the  discharge 
of  his  duties,  was  shot  by  a  burglar  and  died.  In  re  Margaret  Evans,  vol.  1, 
No.  7,  Bui.  Ohio  Indus.  Com.  p.  5.j. 

2  6  An  injury  received  by  a  railroad  section  foreman  In  an  altercation  with 
one  of  a  gang  of  men  over  which  he  had  supervision,  which  grew  out  of  his 
justifiable  efforts  to  maintain  his  authority  as  foreman  and  to  protect  the 
property  of  his  employer  intrusted  to  his  care,  is  an  injury  in  the  course 
of  employment  within  the  meaning  of  the  Boynton  Act.  Western  Indemnity 
Co.  V.  Pillsbury,  2  Cal.  I.  A.  O.  Dec.  454,  170  Cal.  686,  151  Pac.  398.  Where 
a  foreman  is  threatened  with  assault  by  a  turbulent  and  unruly  workman, 
it  is  not  a  defense  to  his  application  for  compensation  for  injury  sustained  by 
such  assault  that  he  did  not  apply  to  the  police  power  of  the  state  prior  to 
the  attack  to  establish  his  authority  and  protect  him.  The  maintenance  of 
discipline  by  every  foreman  of  a  gang  is  an  issue  of  personality.  The  fore- 
man who  cannot  maintain  order  and  discipline  among  his  men  and  secure 
obedience  to  his  directions  soon  ceases  to  be  a  foreman.  He  is  therefore  not 
taken  out  of  the  course  of  his  employment  by  standing  his  ground,  instead 


§  105  workmen's  compensation  352 

used  in  his  work,^''  or  doing  his  employer's  work  at  home.^^  It 
does  not  preclude  an  injury  from  having  been  received  in  the  course 
of  the  employment  that  the  employe  was  injured  by  fellow  work- 

of  going  to  a  police  officer  for  protection  and  reinforcement.  Rudder  v. 
Ocean  Sliore  Railroad  Co.,  1  Cal.  I.  A.  C.  Dec.  209. 

Where  an  assistant  foreman  was  assaulted  by  two  workmen  wbom  he  had 
just  reprimanded  for  not  doing  their  work  properly,  the  accident  arose  in  the 
course  of  his  employment.  Yume  v.  Knickarbocker  Portland  Cement  Co.,  3 
N.  Y.  St.  Dep.  Rep.  353  (affirmed  In  169  App.  Div.  905,  153  N.  Y.  Supp.  1151). 

A  foreman  whose  duty  in  part  was  to  enforce  discipline,  injured  while 
going  to  stop  a  fight  between  two  of  his  men,  was  injured  in  the  course  of 
employment.     In  re  Warton,  Op.  Sol.  Dept.  of  L.  315. 

2  7  Where  a  driver  in  the  employ  of  a  brewery  was  injured  from  being 
struck  by  a  coemploye  while  he  was  unharnessing  and  caring  for  his  horses, 
he  was  injured  in  the  course  of  his  employment.  In  re  Heitz,  218  N.  Y.  14S, 
112  N.  E.  750,  affirming  155  N.  Y.  Supp.  1112.  Where  a  teamster  was  injured 
while  putting  his  horse  in  its  stall  after  having  unhitched  it  from  the  truck, 
he  was  injured  in  the  course  of  his  employment.  Smith  v.  Price,  168  App. 
421,  153  N.  Y.  Supp.  221.  Where  one  engaged  as  teamster,  whose  special 
duty  was  to  care  for  his  team,  feed  same,  and  make  deliveries  to  customers 
of  the  employer,  after  his  day's  work  took  his  team  to  the  stable,  and  while 
unharnessing  and  feeding  the  team,  passed  behind  the  team  of  a  fellow 
employe  and  was  kicked  by  one  of  the  horses,  the  injury  arose  in  the  course 
of  his  employment,  and  he  was  entitled  to  compensation,  Gylfe  v.  Suburban 
Ice  Co.,  Bulletin  No.  1,  111.,  p.  167. 

An  employe's  duty  was  to  drive  a  light  delivery  wagon  and  when  not  so 
employed  to  work  in  the  shop  of  the  employer.  It  was  also  a  part  of  his 
duty  to  take  care  of  the  horses  which  he  drove  and  to  take  the  horse  and 
wagon  to  his  home  in  the  suburbs  on  Saturday  afternoon,  in  order  to  give  the 
horse  Sunday  pasture  and  to  drive  him  back  to  the  city  on  Monday  morning. 
He  was  injured  on  a  Monday  morning,  while  caring  for  the  horse,  preparatory 
to  driving  to  the  city.  The  Commission  held  that  the  injury  was  received  in 
the  course  of  employment  (In  re  James  Chase,  vol.  1,  No.  7,  Bui.  Ohio  Indus. 
Com.  p.  53),  as  it  was,  also,  where  a  driver's  helper,  a  part  of  whose  duty  was 
to  care  for  horses  used  in  the  business,  was  injured  while  taking  care  of  such 
horses  (In  re  Eva  I.  Craig,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  38). 

2  8  Where  claimant  worked  by  the  day  for  a  merchant  tailor,  doing  the 
work  in  his  own  home,  and  being  injured  there,  he  was  injured  "in  the  course 
of  his  employment  away  from  the  plant  of  his  employer,"  and  entitled  to 
compensation.  (Wk.  Comp.  Act,  §  2,  group  38;  section  3,  subd.  4)  Fiocca  v. 
Dillon,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  13. 


353  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION  DUE  §    106 

man,2^  qj.  bitten  by  a  dog,^*^  or  was  attempting  to  escape  from  a  dan- 
ger of  which  he  has  been  warned.^^ 

§  106.     Term  of  employment 

The  term  of  employment  is  not  necessarily  identical  with  the 
time  during  which  services  are  being  performed  for  the  employer. 
But  where,  by  the  terms  of  the  employment,  an  employe  is  to  be 
ready  at  any  hour  of  the  day  or  night  to  perform  certain  duties,  it 
does  not  follow  that  every  accidental  injury  which  he  may  receive 
during  the  course  of  the  twenty-four  hours  is  compensable.  To 
have  all  the  requisites  for  compensation  present,  it  is  essential  that 

2  9  Where  an  employe,  known  to  be  ticklish,  is  carrying  a  bucket  up  a  stair- 
way, and  a  passing  fellow  employe  playfully  gives  him  a  poke  in  the  ribs  with 
a  newspaper,  causing  him  to  turn  around  and  accidentally  slip  and  fall  down 
the  steps,  such  accident  happened  in  the  course  of  employment.  Flint  v. 
Coronado  Beach  Co.,  2  Cal.  I.  A.  C.  Dec.  395. 

The  injury  was  received  in  the  course  of  the  employment:  "Where  the  dece- 
dent, while  at  work  on  one  of  the  lower  floors  of  a  building  in  the  course  of 
erection,  was  killed  by  the  falling  of  a  piece  of  plank  from  one  of  the  upper 
stories,  presumably  caused  by  one  of  the  workmen  of  the  principal  contractor, 
who  was  working  on  the  same  building.  Biddinger  v.  Champion  Iron  Co.,  vol. 
1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  70.  Where  an  employe,  while  engaged  in  per- 
forming work  he  was  employed  to  perform,  was  assaulted  and  killed  by  a 
fellow  employs.  In  re  Margaret  M.  Clark,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com. 
p.  125.  Where  a  stenographer  was  feloniously  shot  and  killed  by  a  fellow 
employs  while  she  was  taking  shorthand  notes  dictated  by  her  employer.  In 
re  Anna  Schwenlein,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  136.  Where  a 
foreman,  while  in  the  discharge  of  his  regular  duties,  was  shot  by  an  em- 
ploye whom  he  had  discharged.  In  re  Chas.  F.  Roll,  vol.  1,  No.  7,  Bui.  Ohio 
Indus.  Com.  p.  63. 

An  employe  whose  arm  was  broken,  without  negligence  or  misconduct  on 
his  part,  by  being  struck  by  an  angry  foreman,  was  injured  in  the  course  of 
his  employment.    In  re  Flemmings,  Op.  Sol.  Dept.  of  L.  225. 

3  0  Where  a  workman  was  bitten  by  a  dog  while  he  was  engaged  in  the 
work  he  was  employed  to  perform,  he  was  injured  in  the  "course  of  employ- 
ment" (In  re  Wm.  Miller,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  46),  as  also 
was  a  workman  bitten  by  a  mad  dog  while  attending  to  his  duties  (In  re 
Bailey,  Op.  Sol.  Dept.  of  L.  297). 
81  Bode  V.  Shreve  &  Co.,  1  Cal.  I.  A.  C.  Dec.  6. 
HoN.CoMP.— 23 


§  106  workmen's  compensation  354 

he  be,  in  fact,  discharging  some  duty  in  the  course  of  his  employ- 
ment.^^ The  term  of  employment  includes  time  spent  in  traveling 
on  the  emplo3'er's  business,^^  and  a  reasonable  latitude  of  acts  not 
in  furtherance  of  the  business,  but  done  during  working  time.'*    A 

32  Gallup  V.  City  of  Pomona,  1  Cal.  I.  A,  C.  Dec.  242. 

33  Where  the  frost-bite  which  produced  a  lesion  causing  erysipelas  and 
death  was  received  by  the  employ^  while  he  was  performing  his  duties  of 
soliciting  insurance  and  collecting  premiums,  such  duties  requiring  him  to 
make  long  rides  without  regard  to  weather  conditions,  the  injury  arose  in  the 
course  of  his  employment.  Larke  v.  John  Hancock  Mut.  Life  Ins.  Co.,  90  Conn. 
303,  97  Atl.  320. 

While  a  .salesman  is  actually  engaged  in  traveling  in  his  employer's  business 
and  in  the  line  of  duty,  the  risks  incident  to  the  various  modes  of  convey- 
ance he  may  take  are  incidental  to  the  employment,  without  regard  to  the 
hour  of  the  day  when  the  risks  are  incurred.  Travelers'  Insurance  Co.  v. 
Spaulding  &  Bros.,  1  Cal.  I.  A.  C.  Dec.  575.  Where  a  moving  picture  actress 
was  sent  out  from  the  studio  with  the  other  members  of  the  company  to  pro- 
duce a  scone  a  half  mile  away,  and  was  injured  while  returning  to  the  studio 
on  horseback  to  put  on  her  street  clothes,  such  injury  was  received  in  the 
course  of  her  employment.  Jansen  v.  Balboa  Amusement  Producing  Co.,  1 
Cal.  I.  A.  C.  Dec.  477.  Where  it  was  the  duty  of  an  employe  of  a  water 
company  to  inspect  the  distributing  system  of  the  company,  and  remedy  de- 
fects found  by  or  reported  to  him,  immediately  or  when  needed,  in  his  own 
judgment,  i-egardless  of  the  hours  of  service,  and  he  had  received  a  report  of 
trouble  in  the  company's  pipe  lines  and  had  started  to  search  for  the  defect, 
but  was  injured  by  an  automobile  accident,  while  on  the  way,  the  injury  was 
received  in  the  course  of  his  employment.  Phillips  v.  Chanslor-Caufield  Mid- 
way Oil  Co.,  1  Cal.  I.  A,  C.  Dec.  5S0.  Where  a  civil  engineer,  sent  from  San 
Francisco  to  Eureka  to  survey  a  quarry  and  bring  his  notes  back  to  the  home 
office  for  inspection  and  consultation,  was  drowned  on  the  wrecking  of  the 
steamship  Ilanalei,  while  he  was  returning  to  San  Francisco,  the  accident 
arose  in  the  course  of  his  employment  and  is  compensable.  Hutchinson  v. 
Pacific  Engineering  &  Construction  Co.,  2  Cal.  I.  A.  C.  Dec.  600. 

3  4  Where  a  peach  cutter  in  a  cannery  stepped  momentarily  from  her  place 
of  work  to  talk  to  a  fellow  employe,  and  while  doing  so  was  injured  by  un- 
guarded machinery,  the  accident  occurred  while  the  employe  was  in  the  course 
of  her  employment.  The  industrial  orbit  of  the  work  being  done  must  include 
such  reasonable  latitude  as  is  consistent  with  common  practice,  common  sense, 
and  the  work  to  be  done.  London  &  Lancashire  Guarantee  &  Accident  Co.  v. 
Romberger,  2  Cal.  I.  A.  C.  Dec.  38.  Where  a  man,  hired  at  a  fixed  salary  to 
make  the  regular  collections  of  rentals  and  premiums  due  to  an  established 


355  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    106 

workman  is  injured  in  the  course  of  employment  where  she  has 
finished  one  kind  of  work  upstairs  and  is  going  downstairs  to  be- 
p-in  work  for  which  she  is  paid  in  a  different  way,  and  is  injured  on 
the  stairs  while  in  transit.^^  Where  it  is  the  duty  of  an  employe  to 
go  from  one  job  to  another  ^'^  or  to  places  away  from  the  employ- 
er's office  and  then  to  return  thereto  to  make  a  report,  he  is,  at  all 
such  times,  acting  in  the  course  of  his  employment."  The  same  is 
true  of  a  delivery  boy  injured  from  being  thrown  from  a  bicycle 
furnished  by  his  employer  after  he  has  called  at  his  home  and  taken 
lunch,  and  while  he  is  on  his  way  to  make  a  delivery.^^     "Course 

real  estate  and  insurance  agent,  had  his  working  hours  fixed  from  8  a.  m.  to 
6  p.  m.,  but  did  not  require  all  of  the  time  for  making  collections,  and,  though 
the  employer  controlled  his  whole  working  day,  he  allowed  him  to  solicit  new 
business  in  the  time  not  required  for  the  regular  collecting,  and  paid  him  for 
such  soliciting  a  percentage  of  the  profit  therefrom,  while  soliciting  new  busi- 
ness he  was  an  employe  and  acting  in  the  course  of  his  employment,  and  was 
entitled  to  the  benefits  of  the  act  when  injured.  Trobitz  v.  Cameron,  1  Cal. 
I.  A.  O.  Dec.  550. 

The  employe  was  engaged  by  a  government  ofiicial  on  one  day  to  proceed  to 
a  certain  point  on  the  following  day,  carrying  with  him  for  a  distance  of 
eight  miles  certain  tools  and  equipment  of  the  government  which  were  neces- 
sary for  the  work  to  be  done.  Before  reaching  the  destination  the  employe 
was  injured  by  one  of  the  tools  he  was  carrying.  He  was  injured  in  the 
course  of  his  employment,  which  began  when  he  started  on  the  journey  with 
the  tools.    In  re  Connor,  Op.  Sol.  Dept.  of  L.  330. 

3  5  Wheeler  v.  Contoocook  Mills  Corp.,  77  N.  H,  551,  94  Atl.  265. 

36  Where  a  workman  was  hired  to  go  around  trimming  trees,  and  had  on 
his  person  at  the  time  of  the  injury  a  list  of  places  to  go,  one  after  the  other, 
and  was  run  down  by  an  automobile  while  going  from  one  job  to  another,  the 
accident  arose  in  the  course  of  his  employment.  Kunze  v.  Detroit  Shade  Tree 
Co.  (Mich.)  158  N.  W.  851. 

A  workman,  taking  a  trip  on  a  barge  furnished  by  his  employer,  in  order 
that  he  might  be  ready  to  assist  in  unloading  the  cargo  when  it  arrived  at 
the  destination,  was  injured  in  the  course  of  his  employment  where  he  fell 
off  the  barge  and  was  drowned,  even  though  he  had  no  duties  to  perform 
during  the  voyage.    W.  R.  Rideout  Co.  v.  Pillsbury  (Cal.)  159  Pac.  435. 

37  Turgeon  v.  Fox  Co.,  1  Cal.  I.  A.  C.  Dec.  68. 

3  8  (Wk.  Comp.  Act,  pt.  2,  §  1)  Beaudry  v.  Watkins  (Mich.)  158  N.  W.  16. 


§  106  workmen's  compensation  356 

of  employment"  may  include  a  case  where  an  employe  returns  for 
his  pay  ^^  or  tools,**^  or  is  working  overtime,  or  endeavoring  to  save 
his  master's  property,"  but  not  where  an  employe,  after  being  sus- 
pended or  discharged,  goes  to  the  place  of  the  accident,  in  violation 
of  orders,*^  or  in  his  own  interests,  and  not  the  interests  of  his 
employer, ''3  or  returns  to  the  place  of  employment  after  discharge 

3  9  Employes  going  to  get  their  wages,  or  returning  from  getting  them, 
have  been  held  to  have  been  injured  in  the  course  of  their  employment  in 
cases  where  a  collier,  who  was  knocked  down  and  injured  by  an  engine  on 
his  employer's  premises  when  he  went  for  his  wages,  at  12:30  p.  m.  which 
was  the  proper  time,  he  having  quit  work  at  5  a.  m.  (Lowry  v.  Sheffield 
Coal  Co.,  Ltd.  [1909]  1  B.  W.  C.  C.  1,  C.  A.) ;  where  a  mill  worker,  whose  con- 
tract of  service  ended  on  Wednesday,  went  to  the  mill  on  Friday  to  get  her 
pay,  as  was  the  custom  in  the  trade,  and  met  with  an  accident  while  leaving 
(Riley  v.  Holland  &  Sons,  Ltd.  [1911]  4  B.  W.  C.  C.  155,  C.  A.) ;  and  where  a 
workman  who  was  required  by  his  employers  to  go  to  a  certain  place  in  or- 
der to  get  his  wages,  and  paid  for  the  time  spent  in  going  and  returning, 
got  on  a  wrong  tram  car  on  his  way  back,  and  was  struck  while  getting  off 
by  a  passing  car  (Nelson  v.  Belfast  Corporation  [1909]  1  B.  W.  C.  C.  158, 
C.  A.). 

40  A  miner,  who  was  injured  while  going  down  the  mine,  with  permission, 
to  fetch  his  tools,  several  days  after  his  employment  had  ceased,  was  in- 
jured in  the  course  of  his  employment.  INIolloy  v.  South  Wales  Anthracite 
Colliery  Co.  (1911)  4  B.  W.  C.  C.  65,  C.  A. 

41  Munn  V.  Industrial  Board,  274  111.  70,  113  N.  E.  110.  The  fact  that  at 
the  time  of  the  accident  the  workman's  service  for  the  day,  according  to  the 
terms  of  his  employment,  had  ended,  did  not  require  a  reversal  of  a  finding 
that  the  accident  was  received  in  the  course  of  his  employment.    Id. 

42  A  collier,  who  had  been  suspended,  and  instead  of  going  to  the  pit  bot- 
tom remained,  contrary  to  orders,  in  a  "pass-by,''  and  two  hours  later  met 
with  an  accident  there,  was  not  injured  in  the  course  of  his  employment. 
Smith  V.  South  Normanton  Colliery  Co.,  Ltd.  (1903)  5  W.  C.  C.  14,  C.  A. 
(Act  of  1897). 

4  3  Where  a  collier  was  dissatisfied  with  his  pay  note  on  Saturday,  and, 
after  resolving  not  to  resume  work  until  the  note  was  altered,  returned  on 
Monday  to  see  the  undermanager,  who  refused  to  yield,  and  was  knocked 
down  by  a  wagon  and  killed  when  he  was  about  to  leave  the  premises,  he 
was  not  within  the  course  of  his  employment,  having  gone  to  the  mine  in 
his  own  interests,  and  not  in  those  of  his  employer.  Phillips  v.  Williams, 
4  B.  W.  C.  C.  143. 


357  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    106 

seeking  reinstatement.**  Nor  does  it  ordinarily  include  the  time 
after  hiring  and  before  beginning  work.*^  The  captain  of  a  lighter 
may  fairly  be  said  to  be  engaged  in  its  "operation"  continuously 
within  the  New  York  Act  from  the  beginning  to  the  end  of  the 
round  trip,  including  the  loading  and  unloading  of  the  craft,  so 
long  as  he  works  upon  it.*^ 

The  federal  Act  does  not  follow  a  man  after  he  has  voluntarily 
severed  the  relation  of  employer  and  employe  so  as  to  give  him  the 
benefits  of  the  Act  in  case  he  should  afterwards  become  incapacitat- 
ed,*^ except  in  certain  special  cases  where  his  claim  is  based  on  an 
injury  received  while  in  the  service,  it  appearing  that  he  knew  noth- 
ing of  the  Compensation  Act  and  quit  because  he  was  unable  to 
continue  work.*^  An  employe  who  after  an  injury  resumes  work 
pursuant  to  orders,  being  assigned  to  lighter  duties,  and  is  again 

44  Where  an  employe  residing  in  Eureka  was  discharged  by  his  employer, 
and  thereafter  came  by  boat  to  San  Francisco  to  plead  for  reinstatement,  his 
coming  not  being  at  the  request  of  the  employer,  and  was  drowned  in  the 
wreck  of  the  ship  upon  which  he  had  taken  passage,  his  death  did  not  occur 
in  the  course  of  his  employment,  and  his  widow  is  not  entitled  to  a  death 
benefit  therefor.  Merritt  v.  North  Pacific  Steamship  Co.,  2  Cal.  I.  A.  C. 
Dec.  237. 

The  employe,  a  longshoreman,  had  finished  his  work  for  the  subscriber  at 
7  o'clock  on  the  night  before  the  fatal  injury  occurred,  and,  after  making  an 
unsuccessful  application  for  work  the  next  day,  was  killed  by  a  passing  train 
while,  crossing  the  railroad  tracks.  It  was  held  not  to  be  an  injury  in  the 
course  of  the  employment,  and  the  widow  was  not  entitled  to  compensation. 
Ganley  v.  Employers'  Liability  Assur.  Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases, 
159  (decision  of  Com.  of  Arb.). 

45  An  employe,  injured  between  the  time  of  entering  into  a  contract  of  em- 
ployment and  actually  beginning  the  work  for  which  he  was  employed,  the 
injury  being  in  no  wise  occasioned  by  the  work  to  be  performed,  is  not  in- 
jured in  the  course  of  his  employment.  In  re  John  Tucker,  vol.  1,  No.  7,  Bui. 
Ohio  Indus.  Com.  p.  86. 

4  6  Edwardson   v.    Jarvis   Lighterage   Co.,    168   App.    Div.    368,    153    N.    Y. 
Supp.  391. 
4  7  In  re  Howley,  Nov.  11,  1909,  Op.  Sol.  Dept.  of  L.  686. 
48  In  re  Watson,  Op.  Sol.  Dept.  of  L.  730,  733. 


§  107  workmen's  compensation  358 

injured,  the  injury  resulting  in  immediate  incapacity,  established  a 
new  claim. *^ 

§  107.     Going  to  work 

While  there  is  a  difference  between  the  beginning  of  employment 
and  the  beginning  of  work,^°  or  going  to  work  on  the  employer's 
time,^^  an  accident  to  a  workman  on  the  way  to  work  is  not  ordi- 
narily in  the  course  of  employment.^"    Exceptions  have  been  noted 

4  9  In  re  Fletcher,  Op.  Sol.  Dept.  of  L.  744. 

5  0  Holmes  v.  Great  Northern  Railway  Co.  (1900)  2  W.  C.  C.  19,  C.  A. 

51  Where  the  evidence  shows  that  the  employe  was  allowed  to  rids  to  and 
from  work  on  the  time  of  his  employer,  he  is  entitled  to  compensation  for 
an  accident  occurring  while  riding  to  work.  Hiserman  v.  Garside,  1  Cal. 
I.  A.  C.  Dec.  516. 

5  2  Hills  V.  Blair,  182  Mich.  20,  148  N.  W.  243. 

Accidents  not  arising  in  course  of  employment:  Where  a  baggage  solici- 
tor, whose  only  duty  was  to  solicit  on  incoming  trains,  and  whose  employ- 
ment each  morning  began  when  he  arrived  at  the  station  and  boarded  the 
train,  fractured  an  arm  by  falling  on  the  sidewalk  while  hurrying  to  the 
depot  to  catch  an  outgoing  train.  Lawton  v.  Los  Angeles  Transfer  Co.,  2  Cal. 
I.  A.  C.  Dec.  1063.  Where  a  boy,  employed  in  a  general  retail  store  and  ac- 
customed to  buy  vegetables  each  morning  for  his  employer  at  a  market  on 
the  direct  route  from  his  home  to  the  store,  was  accidentally  injured  by  a 
street  car,  while  on  his  way  to  work  and  before  reaching  the  market.  Ten- 
uant  V.  Ives,  2  Cal.  I.  A.  C.  Dec.  882.  Where  a  woodsman,  having  gone  to 
town  from  the  lumber  mill  and  logging  camp,  was  to  return  to  work  again  at 
6  a.  m.,  and  while  returning  from  the  mill  to  the  camp  at  midnight,  along 
the  track  of  a  railvt^ay  on  the  premises  which  was  operated  by  the  employer, 
slipped  and  fell  on  a  trestle  and  fractured  his  leg,  it  appearing  that,  ah 
though  this  was  not  an  unusual  way  for  men  to  get  to  the  camp,  it  was  not 
a  necessary  way,  as  the  company  ran  a  regular  train  in  the  early  morning  to 
convey  workmen  to  the  camp.  Hutchinson  v.  Elk  River  Mill  &  Lumber  Co., 
2  Cal.  I.  A.  C.  Dec.  816.  Where  a  building  superintendent  requested  permis- 
sion to  go  with  the  contractor  in  the  employer's  automobile  to  the  work  20 
miles  away,  because  his  own  automobile  was  out  of  repair,  and  took  an  em- 
ploye with  him,  and  the  automobile  turned  over  and  killed  the  employe.  Up- 
ton V.  Stahlhuth,  2  Cal.  I.  A.  C.  539.  Where  a  workman  was  injured  while 
stepping  off  a  car  on  his  way  to  work,  about  200  feet  from  where  his  work 
was,  and  before  time  for  him  to  begin  work.  McWilliams  v.  Haskins,  1 
Conn.  Comp.  Dec.  324.    Where  a  workman  was  injured  on  a  highway  on  his 


3'59  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    107 

to  this  rule  in  cases  where  the  accident  occurred  while  the  employe 
was  on  the  employer's  premises,^^  or  after  reporting  for  duty.^* 
A  reasonable  margin  is  to  be  allowed  him  to  get  on  to  the  prem- 
ises and  to  get  to  the  place  where  he  is  to  do  his  work,  and  if  dur- 

way  to  work.  In  re  Gilkey,  Op.  Sol.  Dept.  of  L.  288.  Where  a  workman 
who  was  hired  to  renovate  the  interior  of  a  church  found  the  door  locked, 
and  in  climbing  over  some  railings  to  get  into  the  churchyard,  and  thence 
into  the  church  through  a  window,  injured  his  foot,  with  fatal  consequences. 
Sheriff  v.  Wilson  (1901)  3  F.  661,  Ct.  of  Sess.  (Act  of  1897).  Where  an  en- 
gine driver,  before  time  for  him  to  begin  work  at  the  engine  shed,  went  for 
his  own  purposes  in  an  opposite  direction  along  the  line  to  a  signal  box, 
and  was  run  over  and  killed  after  leaving  it.  Benson  v.  Lancashire  &  York- 
shire Railway  Co.  (1904)  6  W.  C.  C.  20,  C.  A.  (Act  of  1897).  Where  a  work- 
man, who  by  arrangement  between  his  employers  and  a  railway  company,  for 
whom  they  had  contracted  to  work,  was  permitted  to  cross  the  line  to  reach 
his  work  on  a  siding,  was  run  over  on  a  foggy  morning  and  killed.  Holness 
V.  Mackay  and  Davis  (1899)  1  W.  O.  C.  13,  C.  A.  Where  a  miner  slipped  on 
some  steps  about  a  mile  away  from  his  work,  in  a  short  cut  from  one  point 
in  the  public  road  to  another,  which  had  been  provided  by  the  employers  for 
the  workmen's  convenience,  and  there  being  evidence  to  show  that  they  knew 
the  steps  were  not  safe.  Walters  v.  Staveley  Coal  and  Iron  Co.,  Ltd.  (1911) 
4  B.  W,  C.  C.  303,  H.  L.  Where  a  workman  who  was  directed  to  report  for 
work  on  board  a  ship  in  dock  at  7  a.  m.,  from  which  time  his  wages  would 
start,  was  given  a  return  railway  ticket  to  the  nearest  station,  and  on  his 
return  next  morning  missed  the  gangway  because  of  fog,  and  fell  between 
the  ship  and  the  dock  wall.  Nolan  v.  Parter  &  Sons  (1910)  2  B.  W.  C.  C.  106. 
Where  a  workman,  who  had  been  engaged  to  load  a  van,  was  promised  em- 
ployment in  unloading  it  if  he  were  on  the  spot  when  the  van  arrived,  and 
met  with  an  accident  while  cycling  to  the  place.  Perry  v.  Anglo-American 
Decorating  Co.  (1910)  3  B.  W.  C.  C.  310. 

5  3  See  §  109,  post. 

54  Where  a  workman  was  injured  from  falling  on  the  sidewalk  while  walk- 
ing to  his  place  of  work  after  reporting  to  his  foreman  and  receiving  his  in- 
structions for  the  day,  he  was  injured  in  the  course  of  his  employment. 
Milwaukee  v.  AUhoff,  156  Wis.  68,  145  N.  W.  238,  L.  R.  A.  1916A,  327. 

Where  a  motorman  of  a  street  car  company  is  required  to  report  at  the  car 
barn  five  minutes  before  taking  his  car  out,  and  has  to  walk  several  blocks 
from  the  barn  to  the  place  where  he  is  to  take  his  car,  and  is  injured  by  a 
street  accident  while  walking  to  his  car,  there  being  no  evidence  to  show  that 
he  was  going  out  of  the  way  upon  any  business  of  his  own,  such  employe  is 
injured  while  in  the  course  of  his  employment.  Ketron  v.  United  Railroads 
of  San  Francisco,  1  Cal.  I.  A.  C.  Dec.  528. 


§  107  workmen's  compensation  360 

ing  that  time  he  is  doing  something  which  is  for  the  benefit  of  the 
employer  as  well  as  himself,  such  as  getting  necessary  refreshment, 
he  is  engaged  in  his  employment. "  As  said  by  Collins,  M.  R. :  "It 
is  clear  that  you  cannot  look  at  the  moment  when  he  begins  his 
work  as  the  moment  when  he  gets  into  the  employment."  ^^     The 

5  5  Sharp  V.  Johnson  &  Co.,  Ltd.  (190.5)  7  W.  C.  C,  at  rage  30,  C  A. 

Where  the  engineer  of  a  fishing  boat  went  to  work  in  the  clarli^  of  early 
morning,  crossing  from  the  wharf  over  two  other  larger  vessels  to  where  he 
had  left  his  boat  moored  alongside  another  vessel  because  of  stormy  weather 
the  preceding  night,  and  on  his  arrival  found  his  boat  had  been  changed  in 
the  night  to  its  usual  berth  alongside  a  pier  near  by,  the  captain  calling  out 
in  the  darli  for  him  to  "come  over  here,"  the  falling  of  the  engineer  into  the 
water  and  drowning  while  proceeding  to  return  over  the  other  two  vessels 
was  an  accident  in  the  course  of  his  employment.  Slattery  v.  Ocean  Acci- 
dent &  Guarantee  Co.,  2  Cal.  I.  A.  C.  Dec.  522. 

A  night  foreman  was  required  to  report  at  his  place  of  employment  for 
duty  at  5  o'clock  p.  m.  The  premises  consisted  of  several  acres  of  land,  the 
factory  building  in  which  the  foreman  was  employed  being  located  near  the 
center  of  the  tract.  A  cinder  roadway,  leading  from  a  public  street  through 
the  grounds  on  which  the  factory  building  was  located  to  the  factory  build- 
ing itself,  was  entirely  upon  the  premises  of  the  employer,  and  was  used  for 
both  vehicles  and  pedestrians  in  traveling  from  the  public  street  to  the  fac- 
tory building.  While  going  to  work,  about  30  minutes  before  time  to  report 
for  duty,  and  traveling  along  the  cinder  roadway  toward  the  factory,  the 
foreman  was  run  down  and  killed  by  an  automobile  truck  owned  and  oper- 
ated by  the  American  Express  Company.  The  Commission  held  that  the  in- 
jury occurred  while  the  foreman  was  in  the  course  of  his  employment.  In 
re  Mary  McCarthy,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  190. 

Workmen  arrived  by  train  at  6:10  a.  m.,  20  minutes  before  time  to  begin 
work,  and  the  employers  knew  that  they  arrived  early  and  provided  facilities 
for  them  to  obtain  refreshment  before  beginning  work,  and  required  them  to 
deposit  tickets  within  3  minutes  after  6  :30  a.  m.,  but  allowed  them  to  do  so 
before,  and  one  of  them  was  injured  by  accident  while  on  the  employer's 
premises  at  such  time;  the  injury  was  in  the  course  of  the  employment. 
Sharp  V.  Johnson  &  Co.,  Ltd.  (1905)  7  W.  C.  C.  28,  C.  A.  (Act  of  1S97).  It 
was  likewise  where  a  lighterman  was  told  to  pump  the  water  out  of  a  barge, 
and,  arriving  before  the  tide  had  receded  far  enough  for  him  to  work,  was 
injured  while  getting  into  a  small  boat  to  sit  down  and  wait.  May  v.  Ison 
(1914)  7  B.  W.  C.  C.  148,  C.  A.  Where  a  herder  who  had  to  visit  stock  on 
two  farms,  distant  from  each  other  was  setting  out  after  tea  on  a  bicycle 
from  his  home,  on  one  farm,  and  a  dog  on  his  own  property  upset  him,  caus- 
ing his  death,  the  accident,  though  not  out  of,  was  in  the  course  of,  the  em- 
ployment.    Greene  v.  Shaw  (1912)  5  B.  W.  C.  C.  573,  C.  A. 


361  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    107 

preparation  necessary  for  beginning  work  after  the  employer's 
premises  are  reached  is  a  part  of  the  employment.^®  No  break  in 
the  employment  is  caused  because  the  workman  is  running  to  punch 
the  time  clock,''  unless  he  has  previously  abandoned  his  work  to 
seek  his  own  pleasure.'^  A  person  returning  to  his  place  of  work 
from  lunch  enters  upon  the  course  of  his  employment  only  when 
he  reaches  the  place  where  his  first  duties  are  to  be  performed.^^ 

5  6Terlecki  v.  Strauss,  85  N.  J.  Law,  454,  89  Atl.  IOL'3. 

Where  the  employe,  who  fell  from  the  fifth  story  of  a  building  under  con- 
struction on  which  he  had  been  working,  was  on  the  premises  on  the  morning 
after  a  rain  in  the  expectation  of  beginning  work  later  in  the  day,  and  had 
gone  to  the  fifth  story  to  make  ready  for  work,  the  accident  arose  in  the 
course  of  his  employment.  Campanella  v.  Frank  Stola  Constr.  &  Bldg.  Co., 
The  Bulletin,  N.  Y.,  vol.  1,  No.  12,  p.  17.  A  roadmaster  of  a  railroad  request- 
ed an  interpreter  to  get  ten  men,  such  as  he  had  secured  before,  and  bring 
them  to  a  certain  siding  for  the  purpose  of  going  to  work,  at  the  same  time 
giving  him  a  pass  for  himself  and  ten  men,  from  the  place  where  they  were 
to  be  secured  to  the  place  of  work.  After  arriving  at  the  place  of  work,  one 
of  the  men,  while  removing  his  baggage,  was  struck  by  a  train  and  killed. 
The  evidence  was  held  by  the  Board  to  be  sufficient  to  justify  the  conclu- 
sion that  the  deceased  was  in  the  employ  of  the  railroad  company,  and  that 
the  injury  arose  in  the  course  of  the  employment.  Patterson  v.  Bloomingtou, 
D.  &  C.  R.  Co.,  Bulletin  No.  1,  111.,  p.  101. 

57  (Pub.  Acts  Mich.  [Ex.  Sess.]  1912,  No.  10).  In  Rayner  v.  Sligh  Furniture 
Co.,  180  Mich.  168,  146  N.  W.  665,  L.  R.  A.  1916A,  22,  Ann.  Cas.  1916A,  .386. 
the  court  said:  "We  are  well  satisfied  that  the  accident  was  an  industrial 
accident  within  the  meaning  of  the  Compensation  Act,  and  arose  'out  of  and 
in  the  course  of  his  employment.'  *  *  *  At  the  time  of  the  accident 
Rayner  was  in  the  performance  of  a  duty  imposed  upon  him  by  his  em- 
ployer. When  the  noon  whistle  blew,  it  was  obligatory  upon  him,  before 
leaving  the  place  of  his  employment,  to  punch  the  time  clock.  The  per- 
formance of  this  duty,  if  not  the  proximate  cause,  was  a  concurring  cause, 
of  his  injury." 

58  An  employe,  running  with  others  to  ring  the  time  clock  at  the  noon 
hour,  after  having  been  playing  ball,  was  not  injured  in  the  course  of  his 
employment.    In  re  Kramer,  Op.  Sol.  Dept.  of  L.  322. 

5  9  Where  an  employe,  returning  from  lunch  to  the  place  where  he  is  em- 
ployed, or  to  some  other  place  to  get  necessary  papers  to  use  at  the  place 
where  he  is  employed,  is  struck  by  an  automobile  while  crossing  the  street, 
he  is  not  acting  in  the  course  of  his  employment  at  the  time  of  such  acci- 


§  108  workmen's  compensation  362 

Where  the  work  of  a  collector  and  superintendent  of  drivers,  who 
starts  at  7  o'clock  in  the  morning  with  instructing  drivers,  and  later 
makes  collections  at  the  residences  of  customers  without  returning 
to  the  employer's  premises,  commences  at  the  employer's  offices  at 
7  o'clock  in  the  morning,  but  is  later  to  be  performed  outside  of 
the  employer's  premises,  the  protection  of  the  Compensation  Act 
follows  him  until  he  reaches  his  home  at  night,  but  does  not  cover 
him  while  on  his  way  to  the  employer's  premises  in  the  morning, 
in  the  absence  of  tasks  to  be  performed  by  him  before  reaching 
such  premises. ^°  Where  an  employe  called  out  on  emergency  gets 
wet  and  exhausted  from  wading  through  wet  snowdrifts  on  his  way 
to  his  place  of  employment,  and  is  compelled  to  begin  and  continue 
work  without  any  chance  of  removing  his  clothes,  contracting  pneu- 
monia thereby,  it  does  not  bar  recovery  that  his  clothes  got  wet 
while  he  was  on  his  way  to  work,  instead  of  after  work  began.^^ 

§  108.     Returning  from  work 

Although  a  man  is  not,  as  a  rule,  doing  the  work  for  which  he 
was  employed  when  he  has  left  off  work  and  is  returning  home,''- 

dent  (Gallup  v.  City  of  Pomona,  1  Cal.  I.  A.  C.  Dec.  242) ;  nor  is  an  employe 
who  is  ordered  to  come  back  after  supper  for  overtime  work,  the  time  con- 
sumed in  eating  supper  to  be  included  in  his  pay  for  overtime,  and  is  killed 
accidentally  by  a  train  on  railroad  tracks  outside  the  premises  when  re- 
turning (Leite  V.  Paraffine  Paint  Co.,  2  Cal.  I.  A.  C.  Dec.  1022). 

6  0  Zbinden  v.  Union  Oil  Co.  of  California,  2  Cal.  I.  A.  C.  Dec.  616. 

61  Linnane  v.  iEtna  Brewing  Co.,  1  Conn.  Comp.  Dec.  677  (appeal  pending 
in  superior  court). 

6  2  Hills  V.  Blair,  182  Mich.  20,  148  N.  W.  243;  Poulton  v.  Kelsall  (1912)  5 
B.  W.  C.  C.  318,  C.  A. 

Yv^here  an  employe  was  killed  in  a  railroad  yard  forming  no  part  of  the 
employer's  plant,  while  he  was  returning  home,  and  the  contract  of  em- 
ployment did  not  provide  for  transportation,  compensation  was  not  recovera- 
ble. (St.  1911,  c.  751,  pt.  2,  §  1)  Leveroni  v.  Travelers'  Ins.  Co.  (Fumicello's 
Case),  219  Mass.  488,  107  N.  E.  349. 

Where  a  newspaper  reporter,  whose  duties  required  the  gathering  of  news 
in  the  town  in  which  he  lived  and  in  the  town  two  miles  away  where  the 


3G3  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    108 

there  is  a  marg-in  both  of  time  and  of  place  allowed  to  the  work- 
man after  his  day's  work  is  over  before  it  can  be  said  that  anything 
that  happens  to  him  is  no  longer  a  happening  arising  in  the  course 
of  his  employment.^^  The  employment  covers  not  only  the  time 
during  which  the  workman  is  engaged  in  his  ordinary  labor,  but 

paper  was  published,  was  injured  while  returning  at  the  close  of  his  day's 
work  to  his  home  on  the  usual  and  best  bicycle  route,  on  a  bicycle  furnished 
by  his  employer,  his  leg  being  crushed  by  a  passing  automobile,  he  was  not 
performing  a  service  as  reporter  at  the  time  of  injury  and  therefore  not 
entitled  to  compensation.  State  Compensation  Insurance  Fund  v.  Lemon,  2 
Cal.  I.  A.  C.  Dec.  507. 

In  Atkins  v.  Scranton,  1  Conn.  Comp.  Dec.  34,  it  was  held  that  where  a 
workman  after  his  day's  work  cutting  ice  put  up  his  tools,  and  started 
home  by  a  short  cut  across  the  pond  instead  of  by  the  public  highway,  and 
while  crossing  the  pond  slipped  and  fell,  that  his  injury  did  not  arise  in  the 
course  of  the  employment. 

An  employ§,  injured  while  on  his  way  from  his  place  of  employment  to  a 
railroad  station,  where  he  expected  to  take  a  car  for  home,  is  not  entitled  to 
compensation  on  account  of  the  injury.  In  re  Herbert  W.  Anderson,  vol.  1, 
No.  7,  Bui.  Ohio  Indus.  Com.  p.  90.  A  policeman  who  was  required  to  be  on 
duty  during  certain  hours  of  each  day,  and  who  was  subject  to  call  at  any 
time,  day  or  night,  was  run  down  and  killed  by  a  train  while  walking  along 
the  right  of  way  of  a  railroad  company.  At  the  time  he  was  killed  he  had 
been  on  duty  the  number  of  hours  specified  by  the  rules  of  the  department 
and  had  left  police  headquarters  to  go  home.  The  reason  for  his  presence 
on  the  right  of  way  of  the  railroad  company  was  not  satisfactorily  explained 
by  the  evidence.  The  Commission  held  that  the  conclusion  that  he  was  killed 
while  in  the  course  of  his  employment  was  not  justified.  In  re  Frances  E. 
Lyman,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  182. 

6  3  Hills  v.  Blair,  182  Mich.  20,  1-18  N.  W.  243;  Graham  v.  Barr  (1913)  6 
B.  W.  C.  C.  412. 

"It  is  a  fallacy  to  assume  that  the  'employment'  ceases  necessarily  when 
actual  work  ceases.  It  includes  going  from  the  place  of  work."  Riley  v.  Hol- 
land &  Sons,  Ltd.  (1911)  4  B.  W.  C.  C.  155,  C.  A. 

Where  a  driver  for  a  creamery  is  accustomed  daily  to  take  a  wagon  load  of 
butter  in  the  afternoon  from  the  creamery  to  his  home  in  another  town,  de- 
livering a  portion  of  the  butter  on  his  way  and  storing  the  rest  at  his  house 
overnight,  to  be  delivered  the  following  day,  and  is  killed  by  the  overturning 
of  his  automobile  after  he  has  made  his  last  delivery  for  the  afternoon  and 
is  on  his  way  home  to  store  the  butter  overnight,  such  accident  occurs  in  the 
course  of  his  employment  and  while  he  is  performing  a  service  growing  out 
of  his  employment.    Golden  v.  Delta  Creamery  Co.,  2  Cal.  I.  A.  C  Dec.  744. 


§  108  workmen's  compensation  364 

also  a  later  time  during-  which  he  is  passing  from  the  surroundings 
of  his  employment  into  surroundings  unrelated  thereto.^*     In  the 

6  4  Hills  V.  Pere  Marquette  R.  R.,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p. 
32.  Applicant's  decedent,  an  employ^  of  respondent,  was  struck  and  killed 
by  one  of  respondent's  trains  while  on  his  way  home  to  dinner.  There  were 
two  ways  of  leaving  the  freight  yard,  one  by  way  of  a  public  highway,  known 
as  Mill  street,  and  the  other  through  respondent's  yard.  The  highway  was 
not  in  good  condition  for  travel,  so  it  was  the  custom  of  the  men,  which  was 
tacitly  acquiesced  in  by  respondent,  to  leave  by  way  of  the  yard,  and  decedent, 
leaving  by  that  way,  was  killed.  Respondent  contends  that,  inasmuch  as  de- 
cedent had  quit  work  for  the  forenoon,  the  relation  of  master  and  servant  did 
not  exist  at  the  time  of  the  occurrence  of  the  accident,  and  further  that  de- 
cedent should  have  left  by  way  of  Mill  street.  The  Commission  held  that  an 
employ^  is  still  his  master's  servant  while  leaving  his  place  of  employment, 
or  doing  such  acts  as  are  incident  to  or  connected  with  such  leaving.    Id. 

An  employ^  was  injured  while  attempting  to  leave  his  employer's  premises, 
through  a  gate  provided  for  the  entrance  and  exit  of  employes,  which  was 
temporarily  closed  on  account  of  an  excavation  immediately  outside  the  gate. 
Another  means  of  exit  had  been  provided  for  the  use  of  employes  when  leav- 
ing the  employer's  premises.  The  injury  consisted  of  a  broken  wrist,  occa- 
sioned by  the  employe  falling  into  the  excavation  immediately  outside  the  gate 
through  which  he  attempted  to  pass.  It  was  held  that  the  injury  was  sus- 
tained in  the  course  of  his  employment.  In  re  M.  H.  Sutter,  vol.  1,  No.  7, 
Bui.  Ohio  Indus.  Com.  p.  147.  An  employe,  after  completing  his  day's  work, 
and  while  still  on  his  employer's  premises,  was  injured  while  going  from  the 
locality  where  he  was  working  to  the  office  of  the  paymaster  to  obtain  his  pay, 
the  traversing  of  that  portion  of  the  premises  on  which  the  injury  occurred 
not  being  forbidden  by  the  rules  or  direction  of  the  employer,  and  injury  not 
purposely  self-inflicted.  The  injury  was  sustained  in  the  "course  of  employ- 
ment" and  the  injured  employ^  is  entitled  to  compensation.  In  re  R.  V.  Phil- 
lips, vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  49.  An  employ^  who,  after  sus- 
pending work  for  the  day  and  while  preparing  to  leave  his  employer's  prem- 
ises, negligently  walked  over  a  pile  of  spindles  to  the  place  where  his  coat 
and  hat  were  hanging  to  get  them,  and  was  injured  by  one  of  the  spindles 
turning  and  spraining  his  ankle,  was  injured  in  the  course  of  his  employ- 
ment, and  is  entitled  to  compensation.  In  re  Earl  W.  Schroeb,  vol,  1,  No.  7, 
Bui.  Ohio  Indus.  Com.  p.  132. 

The  accident  occurred  in  the  course  of  employment:  Where  a  laborer  on 
a  river  barge,  on  which  he  ate  and  slept,  was,  after  the  close  of  his  day's 
work,  proceeding  from  the  shore  to  the  evening  meal  on  the  boat,  and  fell  off 
the  boat  and  was  drowned.  Valente  v.  Fay,  2  Cal.  I.  A.  C.  Dec.  514.  Where 
the  applicant  employ^  caught  her  right  hand  in  the  swinging  door  of  the  main 
entrance  to  the  building,  the  fourth  floor  of  which  was  occupied  by  the  busi- 


365  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    108 

case  of  one  working  at  a  machine  the  benefit  of  the  statute  is  not 
limited  to  the  time  he  is  actually  employed  thereat.  He  must  have 
time  to  reach  his  machine  and  get  away  from  his  employer's  prem- 
ises. The  preparation  necessary  for  leaving  the  employer's  prem- 
ises when  the  work  is  over  is  a  part  of  the  employment.  A  work- 
man is  none  the  less  in  the  course  of  employment  because  he  is 
changing  his  working  clothes  for  his  street  clothes. ^^  If  the  em- 
ploye is  still  engaged  in  the  performance  of  his  duties,  he  is  in  the 
course  of  his  employment,  though  he  is  returning  home.*'*'     How- 

ness  of  her  employer,  while  she  was  leaving  the  building  after  the  close  of 
her  day's  work.  Chaboya  v.  Becker,  2  Cal.  I.  A.  C.  Dec.  958.  Where  an  acci- 
dent happened  while  fire  fighters,  after  extinguishing  the  fire,  were  prepar- 
ing to  leave  the  premises,  without  undue  lingering  or  loafing.  Mazzini  v.  Pa- 
cific Coast  Ry.,  2  Cal.  I.  A.  C.  Dec.  962. 

The  injuries  were  received  in  the  course  of  the  employment  where  a 
workman  was  injured  by  a  fall  while  in  act  of  leaving  his  shop  at  the  close  of 
the  day's  work  (In  re  Fahey,  Op.  Sol.  Dept.  of  L.  283) ;  where  a  watchman 
returning  from  work  was  injured  after  alighting  from  a  labor  train,  while 
walking  on  the  adjoining  track,  which  was  the  only  way  of  reaching  the  high- 
way leading  to  his  home  (In  re  Forde,  Op.  Sol.  Dept.  of  D.  309) ;  and  where 
a  workman  employed  in  an  arsenal  was  injured  while  "ringing  out"  at  a  time 
clock  at  the  close  of  the  day's  work  (In  re  Rugan,  Op.  Sol.  Dept.  of  L.  285). 

6  5  Terlecki  v.  Strauss,  85  N.  J.  Law,  454,  89  Atl.  1023.  Where  a  factory 
employ^  quit  work  at  her  machine  shortly  before  noon,  and  was,  in  accord- 
ance with  custom,  combing  particles  of  wool  out  of  her  hair  preparatory  to 
going  home,  at  a  point  away  from  her  machine,  when  her  hair  was  caught 
in  other  machinery  and  she  was  injured,  the  accident  arose  out  of  and  in  the 
course  of  her  employment.  Id.  This  case  cites  Gare  v.  Vorton  Hill  Colliery 
Co.  [1909]  2  K.  B.  539,  holding  that,  where  a  collier  was  injured  while  leav- 
ing his  work  and  crossing  lines  of  rail  controlled  by  his  employers,  the  acci- 
dent arose  out  of  and  in  the  course  of  the  employment,  though  he  had  three 
ways  to  go  home,  the  way  used  being  the  shortest  and  one  commonly  used 
by  workmen  with  the  knowledge  and  consent  of  the  employers. 

An  employe  suspended  work  about  a  minute  before  time  to  quit  for  lunch 
and  proceeded  to  a  locker  on  the  premises  of  his  employer.  A  fellow  em- 
ployg,  who  was  in  the  locker  room,  rolled  up  a  pair  of  overalls,  and  in  a  spir- 
it of  fun  threw  them  at  him,  striking  him  in  the  face  and  injuring  his  eye. 
The  injury  was  sustained  while  in  the  course  of  employment.  In  re  Thomas 
Mack,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  120. 

6  6  Where  an  employ  §  of  an  irrigation  company,  whose  duties  are  to  super- 
vise the  distribution  of  water,  is  injured  while  returning  to  his  home  after 


§108  workmen's  compensation  366 

ever,  where  a  laundry  driver  is  accustomed,  after  putting  up  his 
team  for  the  night,  to  gather  or  leave  laundry  while  riding  home 
on  his  bicycle,  but  was  not  in  fact  so  doing  on  the  evening  when 
he  was  struck  by  an  automobile,  the  accident  cannot  be  said  to  have 
been  received  while  acting  in  the  course  of  his  employment.^^  And 
where  claimant  was  accustomed  to  mail  letters  at  the  post  office  on 
her  direct  route  home  after  her  day's  work,  such  duty  not  altering 
her  course  from  the  plant  of  her  employer  to  her  home,  an  injury 
received  after  posting  the  letters  and  continuing  toward  home  does 
not  arise  in  the  course  of  her  employment.^^  It  is  a  question  of 
fact  up  to  what  point  of  time  the  employment  can  be  said  to  con- 
tinue after  the  workman  has  ceased  working.  As  already  said, 
v/hile  he  is  leaving  the  place  where  he  is  employed,  his  employment 
would  still  continue.  But,  though  his  employment  may  continue 
for  an  interval  after  he  has  actually  ceased  working,  yet  there  must 
come  a  time  when  he  can  no  longer  be  said  to  be  engaged  in  his  em- 
ployment in  such  a  way  that  an  accident  happening  to  him  can  be 
said  to  have  arisen  out  of  and  in  the  course  of  his  employment. 

Ms  early  morning  rounds,  incidentally  for  his  breakfast,  but  partly  to  receive 
telephoned  orders,  complaints,  and  the  like,  he  is  injured  in  the  course  of 
his  employment.  Matney  v.  Azusa  Irrigaling  Co.,  2  Cal.  I.  A.  C.  Dec.  898. 
Where  it  was  the  duty  of  an  employe  of  a  gas  company  to  read  meters,  shut 
off  the  gas  when  patrons  of  the  company  moved,  collect  accounts,  and  deliver 
orders,  his  employment  not  ending  at  any  particular  hour  or  place,  but  being 
continuous,  he  was  at  all  times,  except  when  at  home,  under  the  protection  of 
the  Compensation  Act,  and  is  entitled  to  compensation  for  disability  for  ac- 
cidental injury  by  collision  of  his  motorcycle  with  an  automobile,  in  a  public 
street,  while  on  his  way  home,  although  not  actually  engaged  in  the  perform- 
ance of  a  service  of  his  employment  at  the  specific  time  and  place  of  the  ac- 
cident. (Harris  Weinstock,  Commissioner,  dissented  on  the  ground  that  the 
employe  was  not,  at  the  time  of  the  accident,  performing  service  growing  out 
of  and  incidental  to  his  employment,  and  was  not  acting  within  the  course  of 
his  employment  as  such  employe,  as  provided  in  section  12(a)  (2)  of  the  Work- 
men's Compensation,  Insvirance,  and  Safety  Act.)  Ferguerson  v.  Royal  Indem- 
nity Co.,  1  Cal.  I.  A.  C.  Dec.  11. 

6  7  Ogilvie  V.  Egan,  1  Cal.  I.  A.  C.  Dec.  79. 

6  8  Pogue  V.  Nassau  Light  &  Power  Co.,  1  N.  Y.  St.  Dep.  Rep.  429. 


367  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    108 

There  must  be  a  line  beyond  which  the  liability  of  the  employer 
cannot  continue,  and  the  question  where  that  line  is  to  be  drawn  in 
each  case  is  a  question  of  fact.*^^  Where  an  engine  driver  when  go- 
ing off  duty  has  to  report  himself  at  the  station  which  can  only  be 
reached  by  walking  for  some  distance  down  the  line,  and  while  so 
doing  is  killed  by  a  down  train  which  to  his  knowledge  has  been 
signaled,  after  passing  by  a  few  yards  the  first  available  egress 
from  the  line,  a  footpath  leading  to  a  gate  not  always  unlocked,  he 
is  killed  in  the  course  of  his  employment/" 

In  an  English  case  the  court  held  that,  although  there  might  be 
cases  where  the  employment  of  a  workman  ceased  so  soon  as  he 
left  his  work,  yet  a  commercial  traveler  was  on  a  different  footing, 
his  business  being  to  travel,  and  that  from  the  time  he  left  his  home 
on  his  employers'  business,  and  whilst  engaged  therein  and  imtil 
he  returned  to  his  home  he  was  serving  in  their  employment.'^^  In 
a  Massachusetts  case  the  employe,  a  traveling  salesman,  was  a  pas- 
senger on  a  Boston  elevated  car  on  the  day  of  the  injury,  and  in- 
tended to  meet  a  customer  at  a  certain  point.  He  abandoned  this 
intention,  however,  and  decided  to  go  home.  After  passing  the 
point  where  he  at  first  intended  to  leave  the  car  and  meet  the  cus- 
tomer, and  before  he  arrived  home,  he  was  injured.  Suit  was  first 
brought  against  the  Boston  Elevated  Railway  Company  and  a  de- 
cision filed  against  the  claimant.    While  the  case  was  pending,  on 

6  9  Smith  V.  South  Normantown  Colliery  Co.,  Ltd.  (1903)  5  W.  C.  C.  14,  C.  A. 
(Act  of  1S97). 

Where  an  engineer,  after  leaving  his  engine  and  turning  in  his  time  slip, 
went  on  down  the  tracks  for  several  hundred  feet,  and  across  a  public  high- 
way, and  was  then  struck  by  a  train  and  killed,  the  accident  did  not  occur  in 
the  course  of  his  employment.  Ames  v.  New  York  Central  R.  R.  Co.,  The 
Bulletin,  N.  Y.,  vol.  1,  No.  12,  p.  17. 

7  0  Todd  v.  Caledonian  Railway  Co.  (1899)  1  F.  1047,  Ct.  of  Sess.  (Act  of 
1897). 

71  Dickinson  v.  Barmak,  Ltd.  (1908)  L.  T.  Jo.  403,  C.  A.  A  commercial 
traveler,  out  canvassing,  who,  intending  to  return  home,  missed  his  way  to 
the  railway  station  in  the  dark,  fell  into  a  canal,  and  drowned,  sustained  an 
accident  in  the  course  of  his  employment.     Id. 


§109  workmen's  compensation  368 

exceptions,  the  employe  claimed  compensation  under  the  statute. 
His  expenses,  from  the  time  of  leaving  home  until  he  returned 
thereto,  were  paid  by  his  employer.  The  Commission  held  that 
he  was  not  entitled  to  compensation.'^^ 

§  109.     Premises  of  employer 

In  applying  the  rule  that  the  employment  is  not  limited  by  the 
exact  time  when  the  workman  reaches  the  scene  of  his  labor  and 
begins  it  nor  when  he  ceases,  but  includes  a  reasonable  time,  space, 
and  opportunity  before  and  after,  while  he  is  at  or  near  his  place 
of  employment,  one  of  the  tests  is  whether  the  workman  is  still 
on  the  premises  of  his  employer.  This,  while  often  a  helpful  con- 
sideration, is  by  no  means  conclusive.  A  workman  might  be  on 
the  premises  of  another  than  his  employer,  or  in  a  public  place,  and 
yet  be  so  close  to  the  scene  of  his  labors,  within  its  zone,  environ- 
ments, and  hazards,  as  to  be  in  effect  at  the  place  and  under  the  pro- 
tection of  the  act,  while,  on  the  other  hand,  as  in  case  of  a  railway 
stretching  endless  miles  across  the  country,  he  might  be  on  the 
premises  of  his  employer,  and  yet  be  far  removed  from  where  his 
contract  of  labor  called  him.  The  protection  of  the  law  does  not 
extend,  except  by  special  contract,  beyond  the  locality,  or  vicinity, 
of  the  place  of  labor.''^     There  are  many  cases  where  an  accident 

7  2  Muir  V.  Ocean  Ace.  &  Guarantee  Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases, 
172  (decision  of  Com.  of  Arb.). 

7  3  Hills  V.  Blair,  182  Mich.  20,  148  N.  W.  243;  Hoskins  v.  Lancaster,  3  B. 
W.  C.  C.  476. 

In  Caton  v.  Snmmerlee  &  M.  I.  &  S.  Co.,  39  Scotch  L.  R.  762,  it  was  held 
that  the  injury  did  not  arise  out  of  and  in  the  course  of  the  employment  of 
a  laborer  who,  at  the  conclusion  of  his  day's  work,  was  knocked  down  and 
killed  by  a  passing  engine  230  yards  from  where  he  had  been  working,  while 
walking  home  along  a  private  railway  track  belonging  to  his  employer,  which 
many  of  the  men  employed  at  the  same  place  were  in  the  habit  of  using  in 
going  to  and  from  their  work.  The  court  there  said:  "The  deceased  at  the 
time  of  the  accident  had  ceased  his  work,  had  left  the  place  where  he  did  it, 
and  was  on  his  way  home.  He  had  at  the  time  no  duty  to  fulfill  to  his  mas- 
ter, and  the  master  had  no  duty  to  fulfill  towards  him.    The  relation  of  mas- 


369  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    109 

may  arise  while  a  man  is  on  the  master's  premises,  but  not  engaged 
in  active  work,  and  whether  he  is  there  going  about  the  premises  in 
pursuance  of  the  necessities  of  life,  such  as  eating,  drinking,  res- 
piration, and  other  things  that  need  not  be  mentioned,  and  is  not 
doing  anything  that  is  either  wrong  or  against  his  contract  or  out- 
side his  employment,  in  such  a  case,  no  doubt,  the  accident  must 
be  treated  as  one  arising  out  of  his  employment.  It  has  been  so 
held  in  cases  in  both  Scotland  and  England.  But,  on  the  other 
hand,  if  a  man  is  doing  something  unlawful,  or  if  his  accident  is 
due  to  something  that  is  being  transacted  between  him  and  other 
people  with  which  the  master  has  nothing  to  do,  such  facts  might 

ter  and  servant  had  ended  for  the  day,  he  having  fulfilled  his  work  and  left 
the  place  where  his  work  was  being  done." 

An  employe,  injured  while  on  his  employer's  premises,  may  be  entitled 
to  compensation,  though  he  was  not  actually  engaged  in  the  performance  of 
the  work  he  was  employed  to  do.  In  re  Katharina  Schatz,  Vol.  I,  No.  7,  Bui. 
Ohio  Indus.  Coin.  p.  60. 

In  Barnard  v.  H.  Garber  &  Co.,  1  Conn.  Comp.  Dec.  572,  where  an  aged 
workman  fell  on  the  steps  of  his  employer's  establishment  when  entering  to 
begin  work  in  the  morning,  on  accouiit  of  their  slippery  condition,  it  was  held 
the  injury  arose  in  the  course  of  the  employment.  In  Penfield  v.  Town  of 
Glastonbury,  1  Conn.  Comp.  Dec.  637,  where  a  janitor  was  injured  by  slip- 
ping on  the  ice  while  passing  from  the  coal  shed  to  the  schoolhouse,  which  his 
duties  required  him  to  heat,  while  on  the  premises  for  the  purpose  of  re- 
building a  fiire,  the  injury  was  held  to  have  arisen  in  the  course  of  his  em- 
ployment. 

An  employs  of  a  railroad  company,  who  entered  his  employer's  premises 
at  a  station  2i/^  miles  from  where  his  gang  was  working,  and  who  was  kill- 
ed while  on  his  way  down  the  tracks  to  join  them,  was  not  killed  in  the  course 
of  his  employment.  Dowling  v.  New  York  Central  &  H.  R.  R.  R.  Co.,  The 
Bulletin,  N.  Y.,  vol.  1,  No.  10,  p.  17. 

Where  a  miner,  at  the  end  of  his  day's  work,  changed  his  clothes,  and,  still 
carrying  a  miner's  lamp,  started  towards  the  bottom  of  the  shaft  with  the 
intention  of  ascending  to  the  top  of  the  mine,  and  about  200  feet  from  the 
room  where  he  had  been  at  work  and  about  one-half  mile  from  the  bottom 
of  the  shaft  one  of  his  eyes  was  put  out  by  coming  in  contact  with  a  piece 
of  slate  hanging  from  the  roof,  it  was  held  his  duties  had  not  ended  until  he 
left  the  mine,  and  that  the  accident  arose  in  the  course  of  his  employment. 
Sedlock  V,  Carr  Coal  Mining  &  Mfg.  Co.  98  Kan.  6S0,  159  Pac.  9. 

HoN.CoMP, — 24 


§109  workmen's  compensation  870 

raise  an  exception.'^*  It  must  not  be  assumed  that  the  protection 
of  the  Compensation  Acts  extends  to  workmen  on  any  part  of  the 
employers'  land,  whatever  the  distance  away  from  the  workman's 
actual  work ;  each  case  must  depend  upon  its  own  facts  as  to  the 
reasonable  interval  of  time  and  space  during  which  the  employ- 
ment lasts. '^^     If  a  man  goes  from  his  working  place  to  another 

7  4  Macklnnon  v.  Miller  (1910)  2  B.  W.  C.  C.  70. 

The  employe  on  her  way  to  luncheon  was  injured  while  going  down  a  flight 
of  stairs  leading  from  the  third  floor  to  the  second  floor  of  the  building  in 
which  she  worked,  there  being  no  other  way  by  which  she  could  reach  the 
street,  except  down  the  stairway  on  which  she  was  injured.  It  was  held  that, 
since  it  was  a  necessary  incident  of  her  employment  to  use  the  flight  of 
stairs  upon  which  the  injury  occurred,  the  injury  arose  in  the  course  of  her 
employment.  Sundine  v.  London  Guarantee  &  Accident  Co.,  Ltd.,  2  Mass. 
Wk.  Comp.  Cases,  833  (decision  of  Indus.  Ace.  Bd.,  affirmed  by  Sup.  Jud.  Ct., 
218  Mass.  1,  105  N.  E.  433,  L.  R.  A.  1916A,  318). 

T5  (Jraham  v.  Barr  and  Thornton  (1913)  6  B.  W.  C.  C.  412,  Ct.  of  Sess. ;  Hos- 
kins  V.  Lancaster  (1910)  3  B.  W.  C.  C.  476,  C.  A. 

An  employe  comes  under  the  protection  of  the  Workmen's  Compensation, 
Insurance  and  Safety  Act  when  he  enters  the  premises  of  his  employer,  and 
leaves  such  protection  when  he  leaves  such  premises.  This  is  true,  even 
though  the  accident  occur  outside  of  working  hours,  since  the  employe  must 
necessarily  arrive  shortly  before  the  time  of  commencing  work,  and  depart 
shortly  after  the  hour  for  quitting.  Oldham  v.  Southwestern  Surety  Insur- 
ance Co.,  1  Cal.  A.  C.  Dec.  258.  While,  as  a  general  rule,  an  employg  acci- 
dentally injured  when  on  the  way  to  and  from  the  place  of  employment  cannot 
claim  compensation,  on  entering  or  leaving  by  the  usual  route  and  means  pro- 
vided by  the  employer,  is  entitled  to  compensation  for  accidental  injury, 
except  when  he  has  loitered  on  the  premises,  or  has  not  left  the  premises  by 
the  usual  means  and  route.  Gardiner  v.  State  of  California  Printing  Office, 
1  Cal.  I.  A.  C.  Dec.  21.  An  employ^  comes  under  the  protection  of  the  Com- 
pensation Act  at  the  time  that  he  reaches  his  employer's  premises  in  the 
morning,  and  remains  thereunder  until  he  leaves  them  at  the  close  of  his 
day's  work,  but  his  risks  in  going  and  coming  are  the  risks  of  the  commonalty, 
and  not  of  his  employment.  In  this  case  an  injury  sustained  by  the  applicant 
by  a  collision  with  a  street  car  while  he  was  going  to  work  in  the  morning 
and  before  reaching  his  employer's  premises  is  held  not  to  be  compensable. 
Zbinden  v.  Union  Oil  Co.  of  California,  2  Cal.  I.  A.  C.  Dec.  616.  Where  a 
teamster,  who  reported  for  duty  each  morning  at  the  stables  of  the  defendants 
on  tlie  exposition  grounds,  was  accidentally  injured  one  morning  after  he 
had  entered  through  the  exposition  gate  and  into  the  grormds,  but  before 


371  CIRCUilSTAXCES   UNDER   WHICH    COMPENSATION   DUB  §    109 

place  in  the  works,  he  must  get  back  to  his  work,  and  if  in  going 
back  he  meets  with  an  accident,  that  is  an  accident  arising  in  the 

reporting  for  duty  at  the  stables,  the  employg  was  not  at  the  time  of  the  ac- 
cident in  the  course  of  his  employment.  Mclnerney  v.  Palmer  &  McBryde,  2 
Cal.  I.  A.  C.  Dec.  655.  Where  an  employ§  is  given  home  work  to  be  performed 
at  her  residence,  and  on  returning  to  her  place  of  employment  on  the  following 
day  with  a  bundle  of  work  stumbles  upon  a  public  sidewalk  not  upon  the 
premises  of  the  employer,  sustaining  serious  injury  and  disability,  such  ac- 
cident does  not  arise  in  the  course  of  her  employment.  Malott  v.  Healey,  2 
Cal.  I.  A.  C.  Dec.  103. 

An  employe,  who  lost  his  life  in  a  burning  building  in  which  he  was  employ- 
vd,  was  killed  "in  the  course  of  his  employment,"  and  his  dependents  are  en- 
titled to  compensation.  In  re  Harriet  Horn,  vol.  1,  No.  7,  Bui.  Ohio  Indus. 
Coin.  p.  35.  An  employe  killed  while  operating  a  derrick  on  the  premises 
of  his  employer,  which  was  a  part  of  the  duties  under  his  contract  of  employ- 
ment, was  killed  "in  the  course  of  his  employment."  In  re  Anna  King,  vol. 
1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  37. 

Federal  Act. — The  following  have  been  held  to  have  been  injured  in  the 
course  of  their  employment:  A  fireman  employed  in  the  Canal  Zone,  injur- 
ed while  performing  service  outside  territory  under  control  of  the  United 
States.  In  re  Nellis,  Op.  Sol.  Dept.  of  L.  2S6.  A  workman  in  the  Canal  Zone, 
injured  while  following  a  customary  path  on  his  way  to  work,  on  the  premis- 
es of  his  employer  or  in  the  immediate  vicinity  thereof.  In  re  Chambers,  Op. 
>'ol.  Dept.  of  L.  291.  An  employ§  walking  along  railroad  track  of  Reclama- 
tion Service  when  going  to  his  work,  who  was  struck  by  a  train  of  that 
service  and  killed.  In  re  Gonzales,  Op.  Sol.  Dept.  of  L.  333.  A  workman  who 
fell  and  was  injured  while  going  through  the  main  gate  of  a  navy  yard.  In 
re  Guerin,  Op.  Sol.  Dept.  of  L.  324.  A  workman  who  was  on  his  way  home 
after  working  hours,  and  was  injui-ed  while  still  on  the  government  premises. 
In  re  Bernard,  Dec.  12,  1913,  Op.  Sol.  Dept.  of  D.  323.  But  an  employe  who 
was  a  cook  in  the  river  and  harbor  work,  and  who  was  drowned  while  go- 
ing to  work,  crossing  the  river  in  a  laiinch  of  a  private  party,  was  not  in  the 
course  of  employment.     In  re  Ware,  Op.  Sol.  Dept.  of  L.  335. 

It  was  held  that  the  injury  was  received  in  the  course  of  the  employment 
where  a  miner  was  on  his  way  to  the  doorway  of  a  horizontal  passage  which 
led  into  the  mine,  and  slipped  and  broke  his  leg  on  rails  on  the  premises  lead- 
ing thereto  (Mackenzie  v.  Coltness  Iron  Co.,  Ltd.  [1904]  6  F.  8,  Ct.  of  Sess. 
[Act  of  1S97]),  and  where  a  collier  was  injured  when  passing  through  an 
iron  gate  on  the  employer's  premises  seeking  to  reach  a  lamp  room  150  yards 
away,  where  he  was  to  start  work  (Iloskins  v.  Lancaster  [1910]  3  B.  W.  C.  C. 
476,  C.  A.).  But  the  holdings  were  to  the  contrary  where  a  workman  while 
on  his  way  to  work  was  crossing  some  vacant  land  owned  by  his  employers, 
and  slipped  on  some  ice  a  quarter  of  a  mile  from  the  place  of  his  work  (Gil- 


§  109  workmen's  compensation  372 

course  of  his  employment,  just  as  in  the  case  of  an  accident  hap- 
pening after  he  has  entered  the  works  in  the  morning  and  while  he 
is  proceeding  to  his  own  place  in  the  works.'^®  If  the  employe  re- 
mains after  hours  for  some  legitimate  purpose  connected  with  the 
employment,  he  may  still  be  within  the  course  of  his  employment,'^  ^ 

mour  V.  Dorman,  Long  &  Co.,  Ltd.  [1911]  4  B.  W.  C.  C  279,  C.  A.);  where 
a  miner  was  knocked  down  by  an  engine  and  killed  at  a  place  400  yards  from 
the  mouth  of  the  shaft  and  2S0  yards  from  the  office  of  the  colliery,  while 
going  home  along  a  track  along  a  branch  railway  which  belonged  to  the  col- 
liery (Graham  v.  Barr  and  Thornton  [1913]  6  B.  W.  C.  C.  412,  Ct  of  Sess.) ; 
where  a  collier  was  killed  after  his  day's  work,  while  going  home  along  a  pri- 
vate railway  belonging  to  his  employers  and  used  for  conveying  things  to  and 
from  the  colliery  (McNicol  v.  Summerlee  &  Mossend  Iron  &  Steel  Co.,  Ltd. 
[1902]  4  F.  9S9) ;  and  where  a  workman  fell  while  returning  home  along  a 
public  footpath  over  his  employer's  land,  because  of  the  rough  nature  of  the 
path  (Williams  v.  Smith  [1913]  6  B.  W.  C.  C.  102,  C.  A.).  When  a  riveter, 
M'ho  was  working  on  a  ship  in  dock,  came  on  deck  expecting  to  go  ashore  for 
breakfast,  he  found  that  the  vessel  was  being  moved,  and,  the  gangway  hav- 
ing been  taken  away,  a  rope  between  the  ship  and  the  quay  was  the  only  pos- 
sible way  of  reaching  shore.  The  rope  gave  way  when  he  slipped  down,  and 
he  was  injured.  It  was  held  that  his  action  was  reasonable,  and  that  the  ac- 
cident arose  out  of  the  employment.  Keyser  v.  Burdick  &  Co.  (1911)  4  B.  W. 
C.  C.  87,  C.  A.  A  miner  whose  duties  began  in  a  lamp  cabin,  and  who  was  in- 
jured on  the  employer's  premises,  but  360  yards  from  the  cabin  and  20  min- 
utes before  time  to  begin  work,  was  not  injured  in  the  course  of  his  employ- 
ment. Anderson  v.  Fife  Coal  Co.,  Ltd.  (1910)  3  B.  W.  C.  C.  539,  Ct.  of  Sess. 
If  a  man  goes  from  his  working  place  to  another  place  in  the  works,  he  must 
get  back  to  his  work,  and,  if  in  going  back  he  meets  with  an  accident,  that  is 
an  accident  arising  in  the  course  of  his  employment,  just  as  in  the  case  of  an 
accident  happening  after  he  has  entered  the  works  in  the  morning  and  while 
he  is  proceeding  to  his  own  place  in  the  works. 

7  6  Thomson  v.  Flemington  Coal  Co.,  Ltd.  (1911)  4  B.  W.  C.  C,  at  page  408. 

7  7  Where  a  moving  picture  actress  remains  in  the  studio  after  hours  to  ar- 
range her  wardrobe,  and  accidentally  falls  over  the  doorsill  of  the  room  of 
another  actress,  where  she  had  stopped  for  a  moment,  suffering  an  injury  to 
her  shoulder,  such  injury  happens  in  the  course  of  the  employment  while  pre- 
paring herself  for  her  work,  and  is  compensable.  Bolles  v.  New  York  Motion 
Picture  Corp.,  2  Cal.  I.  A.  C.  Dec.  501.  Where  the  quitting  time  varied  some- 
what with  the  requirements  of  the  work,  and  the  employ^  was  injured  a  few 
minutes  after  the  regular  hour  for  quitting,  while  on  the  premises  of  the  em- 
ployer, doing  work  of  the  character  he  was  employed  to  perform  and  believing 


373  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION  DUE  §    109 

but  not,  however,  if  he  remains  for  purposes  of  his  own.^^  An  em- 
ploye is  under  the  protection  of  the  Compensation  Act  even  after 
his  discharge,  providing  he  be  injured  upon  the  premises  of  the  em- 
ployer while  remaining  there  for  reasons  connected  with  his  for- 
mer employment.^^  A  workman  whose  employment  requires  him 
to  occupy  sleeping  and  living  quarters  furnished  by  the  employer, 
injured  after  hours,  but  at  such  quarters,  is  injured  in  course  of  em- 
ployment,^" but  it  is  otherwise  where  the  employe  is  living  on  the 
premises  merely  for  his  own  convenience.     The  California  Com- 

in  good  faith  that  such  services  were  required  of  him,  he  was  entitled  to 
compensation  for  disability  as  the  result  of  the  injury  suffered  by  him.  Gor- 
don V.  Eby,  1  Cal.  I.  A.  C.  Dec.  16.  Where  an  employe  who  has  remained 
about  his  place  of  employment  after  the  hour  for  closing  is  injured  by  robbers 
seeking  his  employers'  property  which  he  defended,  such  injury  is  received 
in  the  course  of  his  employment.  Johnston  v.  Mountain  Commercial  Co.,  1 
Cal.  I.  A.  C.  Dec.  100. 

7  8  An  employe  who  remained  upon  the  premises  after  quitting  work,  in- 
stead of  leaving  by  the  usual  means  of  egress,  went  to  a  part  remote  from 
the  part  where  he  was  employed  to  see  an  eniployg  of  another  department 
on  some  personal  matter  of  interest  to  himself,  and  while  so  doing  was  in- 
jured. He  was  not  injured  "in  the  course  of  employment."  In  re  A.  V.  Mitch- 
ell, vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  56. 

A  workman  off  duty,  but  on  premises  of  employment,  who  volunteered  to 
do  a  piece  of  work  and  met  with  an  accident  resulting  in  his  death,  was  not 
injured  in  the  course  of  employment.  In  re  Simpson,  Op.  Sol.  Dept.  of  L. 
316. 

7  9  Goering  v.  Brooklyn  Mining  Co.,  2  Cal.  I.  A.  C.  Dec.  141.  Where  an  em- 
ployg  in  a  few  minutes  after  being  discharged,  while  cleaning  up  his  work 
and  preparing  to  leave  the  premises,  is  injured  by  accident,  such  accident  oc- 
curs in  the  course  of  his  employment,  and  he  is  entitled  to  compensation  there- 
for.   Booth  v.  Burnett,  2  Cal.  I.  A.  C.  Dec.  125. 

80  In  re  Hott,  Op.  Sol.  Dept.  of  L.  302.  An  employ^  who  had  living  quar- 
ters on  a  government  boat  while  off  duty,  at  about  5:30  a.  m.,  left  his  bedroom 
for  some  unknown  reason,  fell  overboard,  and  was  drowned.  The  accident 
was  held  to  have  been  in  the  course  of  the  employment.  In  re  Jenkins,  Op. 
Sol.  Dept.  of  L.  334. 

Where  an  engineer,  employed  to  install  machinery  on  a  dredger,  is  required 
for  the  benefit  of  his  employers  to  live  on  board,  and  while  preparing  his 
breakfast  is  injured  by  the  explosion  of  a  gas  stove,  the  injury  occurred  in 
the  course  of  the  employment    McLean  v.  Shield,  2  Cal.  I.  A.  C.  Dec.  1046. 


§  109  workmen's  compensation  374 

mission  held  that,  where  an  employe  is  furnished  a  boarding  place 
and  bunk  by  the  employer  upon  the  latter's  premises,  and  is  in- 
jured after  working  hours,  while  going  from  the  cookhouse  to  the 
bunkhouse  after  supper,  such  injury  does  not  occur  in  the  course 
of  the  employment  and  is  not  compensable,  saying  that,  while  the 
fact  that  an  accident  happening  upon  the  employer's  premises  is 
usually  taken  as  an  exception  to  the  rule  that  an  accident  outside 
of  working  hours  is  not  compensable,  such  exception  will  not  be 
extended  to  include  accidents  about  the  living  quarters  of  the  em- 
ploye after  the  day's  work  has  been  finished. ^^  Where  a  workman 
arrives  early,  and  is  injured  on  the  premises  while  waiting  to  go  to 
work,  he  is  in  the  course  of  employment.^^  That  the  accident  oc- 
curred while  the  workman  was  taking  a  short  cut  across  his  em- 
ployer's premises  does  not  prevent  it  from  being  in  the  course  of 
employment.^^     Where  an  employe  is  injured  in  going  aboard  or 

81  Mahoney  v.  Sterling  Borax  Co.,  2  Cal.  I.  A.  C.  Dec.  70S. 

8  2  "There  must  be  a  certain  margin  of  unpunctiiality  allowed,  and  if  lie  is 
on  the  premises  before  he  has  to  do  his  work,  and  during  that  time  the  acci- 
dent arises,  it  arises  out  of  and  in  the  course  of  his  employment."  Fitzpatrick 
V.  Hiudley  Field  Colliery  Co.  (1902)  4  Wi  C.  C.  7,  C.  A.  An  injuiT  to  a 
miner,  who  had  got  his  lamp  and  "tallies,"  and,  having  arrived  at  the  pit's 
mouth  earlier  than  necessary,  was  waiting  to  descend  when  the  accident 
occurred,  was  in  the  course  of  his  employment.     Id. 

Where  a  workman  who  arrived  early  began  work  on  the  premises  of  his 
employers  a  few  minutes  before  the  hour  of  8  a.  m.,  when  his  hours  began, 
and  sustained  an  accidental  injury  while  so  engaged,  such  accident  arose 
while  he  was  performing  service  in  the  course  of  his  employment.  Findley 
V.  Judah  Co.,  2  Cal.  I.  A.  C.  Dec.  760. 

A  workman,  injured  by  an  explosion  while  on  the  premises  of  the  govern- 
ment waiting  for  the  time  to  begin  work,  is  injured  in  course  of  his  employ- 
ment.   In  re  Giovanni,  Op.  Sol.  Dept.  of  L.  287. 

83  The  accident  was  in  the  course  of  the  employment:  Where  a  miner,  on 
leaving  his  work  and  taking  a  dangerous  short  cut  across  a  heap  of  waste 
material  on  the  premises  of  the  employer,  fell  and  was  fatally  injured  (Hen- 
dry V.  United  Collieries,  Ltd.  [1910]  3  B.  W.  C.  C.  567,  Ct.  of  Sess.)  ;  where 
some  trucks  were  standing  on  some  railway  lines  on  the  premises  of  a  colliery, 
and  a  collier,  leaving  work  by  his  usual  route,  tried  to  pass  under  them,  and 
was  injured  when  they  were  moved  (Gane  v.  Norton  Hill  Colliery  Co.  [1910] 


375  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    110 

leaving  his  ship  by  means  provided  for  ingress  and  egress,  he  is 
within  the  ambit  of  his  employment  at  the  time  of  such  injury,  and 
is  entitled  to  compensation  therefor.^* 

One  employed  as  a  pipeman  and  truckma'n  in  the  fire  department 
of  a  city  was  not  injured  on  the  premises  of  his  employer  where  he 
was  injured  while  using  the  streets  of  the  city  in  returning  to  work- 
after  his  midday  meal.  He  was  merely  using  the  streets  the  same 
as  any  employe  of  a  private  employer  would  do.  The  streets  may 
constitute  the  premises  of  the  city  in  many  cases,  as,  for  instance, 
where  a  policeman  or  fireman  is  injured  while  on  duty  in  a  street 
or  a  street  employe  is  injured  in  the  performance  of  his  duty 
thereon.  But  where  the  streets  are  used  solely  for  the  purpose  of 
going  to  or  from  an  employment  carried  on  at  a  definite  place  other 
than  a  street,  they  are  not  premises,  within  the  meaning  of  a  Com- 
pensation Act.*^ 

The  Washington  Act  authorizes  recovery  of  compensation  where 
the  injured  employe  is  injured  on  the  employer's  premises  by  the 
act  of  a  third  person.^® 

§  110.     Means  of  conveyance 

There  have  been  several  decisions  in  this  country  and  in  Eng- 
land as  to  when  and  how  far  an  employe  can  be  said  to  have  been 

2  B.  W.  C.  C.  42,  C.  A.)  ;  also  where  officials  of  the  railroad  knew  that  a 
short  cut  which  workmen  had  been  forbidden  to  use  was  habitually  used  by 
many  of  them,  and  a  railway  goods  checker,  leaving  work  by  this  route,  was 
fatally  injured,  the  accident  occurred  in  the  course  of  the  employment  (Mc- 
Kee  V.  Great  Northern  R.  Co.  [1909]  1  B.  W.  C.  C.  165,  C.  A.).  But  in  Haley  v. 
United  Collieries,  Ltd.  (1907)  S.  C.  214,  Ct.  of  Sess.,  a  collier  who,  although 
there  were  two  provided  exits  from  the  colliery,  neither  of  which  crossed  the 
railroad,  took  a  short  cut  across  a  siding  on  the  premises,  a  route  that  was 
not  expressly  forbidden  and  which  was  sometimes  used  by  the  miner,  and 
was  run  down  by  a  train  and  injured,  was  held  not  to  have  been  injured  in 
the  course  of  his  employment. 

84  Boucher  v.  Olson  &  Mahony  Steamship  Co.,  1  Cal.  I.  A.  C.  Dec.  248. 

85  Hornburg  v.  Morris  (Wis.)  157  N.  W.  556. 

86  Stertz  V.  Industrial  Insurance  Commission  of  Washington  (Wash.)  15S 
Pac.  256. 


§110  workmen's  compensation  376 

in  the  employ  of  his  master  while  traveling  to  and  from  his  work  in 
a  vehicle  or  means  of  conveyance  provided  by  the  latter,  and  how 
far  injuries  received  in  such  a  conveyance  can  be  said  to  have 
arisen  out  of  and  in  the'course  of  the  employment. ^^  The  rule  has 
been  established  in  accordance  with  sound  reason  that  the  employ- 
er's liability  in  such  cases  depends  upon  whether  the  conveyance 
has  been  provided  by  him,  after  the  real  beginning  of  the  employ- 
ment, in  compliance  with  one  of  the  implied  or  express  terms  of 
the  contract  of  employment,  for  the  mere  use  of  the  employe,  and 
is  one  which  the  employes  are  required,  or  as  a  matter  of  right  are 
permitted,  to  use  by  virtue  of  that  contract.**     Pursuant  to  this 

87  Discussed  in  an  article  b:f  Prof.  Bohlen,  in  25  Harvard  Law  Review,  401 
et  seq. 

S8  In  re  Donovan,  217  Mass.  76,  104  N.  E.  431,  Ann.  Cas.  1915C,  77S;  Davies 
V.  Rhymney  Iron  Co.,  16  Times  Law  Rep.  329;  Holmes  v.  Great  Northern  Ry., 
[1900]  2  Q.  B.  409;  Whitbread  v.  Arnold,  99  L.  T.  105;  Cremins  v.  Gest,  Keen 
&  Kettlefolds,  [1908]  1  K.  B.  469 ;  Gane  v.  Norton  Hill  Colliery  Co.,  [1909]  2 
K.  B.  439 ;  Hoskins  v.  J.  Lancaster,  3  B.  W.  C.  C.  476 ;  Parker  v.  Pout,  105 
L.  T.  493;  Walters  v.  Staveley  Coal  &  Iron  Co.,  105  L.  T.  119,  4  B.  W.  C.  C. 
89,  303;  Greene  v.  Shawe  (1912)  2  Ir.  430,  5  B.  W.  C.  C.  530;  Mole  v.  Wad- 
worth,  6  B.  W.  C.  C.  128,  6  B.  W.  C.  C.  511;  Walton  v.  Tredegar  Iron  &  Coal 
Co.,  6  B.  W.  C.  C.  592. 

Where  a  street  car  motorman  is  injured  while  boarding  a  street  car  to  take 
him  to  the  place  where  he  is  to  take  his  own  car,  and  was  neither  obliged  to 
report  before  taking  out  his  car,  nor  did  his  time  or  pay  commence  until  he 
took  charge  of  his  car,  and  where  the  car  upon  which  the  employe  is  injured 
is  not  furnished  by  the  railway  company  for  the  purpose  of  taking  its  em- 
ployes to  work,  but  is  used  in  carrying  passengers  generally,  though  employes 
are  allowed  use  of  all  cars  free  of  charge,  whether  going  to  work  or  on  pri- 
vate business,  such  injured  employ^  is  not  acting  in  the  course  of  his  em- 
ployment at  the  time  of  the  accident,  and  is  not  entitled  to  compensation. 
Crow  V.  Los  Angeles  Ry.  Corp.,  1  Cal.  I.  A.  C.  Dec.  449. 

Where  an  employe  in  the  claims  department  of  a  railroad  was  on  his 
way  on  one  of  the  cars  of  his  employer  to  perform  a  duty  as  process  server, 
adjuster,  or  investigator,  and  was  injured  by  some  one  stepping  on  his  toe 
and  so  crushing  it  that  gangrene  set  in,  he  was  under  the  Act.  Brown  v.  Rich- 
mond Light  &  R.  R.  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  12. 

Employes  on  their  way  to  work  in  conveyances  provided  by  their  emploj'- 
ers  were  injured  in  the  course  of  their  employment,  where  an  engine  cleaner 


377  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §110 

rule,  the  employe  is  in  the  course  of  employment  if  he  has  a  right 
to  the  transportation,^^  but  not  if  it  is  gratuitous,  or  a  mere  ac- 

working  at  H.  was  conveyed  free  every  morning  from  K.  to  H.,  and  on  his 
arrival  shortly  before  the  hour  of  beginning  vpork  was  knocked  down  and 
killed  by  a  train  while  crossing  the  line  to  reach  his  work,  there  being  an 
implied  contract  to  carry  him  to  his  work  from  King's  Cross  (Holmes  v.  Great 
Northern  Railway  Co.  [1900]  2  Wi.  C.  C.  19,  C.  A.)  ;  where  a  collier  entitled, 
but  not  obliged,  to  travel  to  and  from  his  work  by  train  free  of  charge,  the 
provision  of  the  train  being  an  implied  term  in  the  contract  of  service,  was 
pushed  off  the  platform  in  the  rush  for  the  train  and  killed  (Cremins  v.  Keen 
and  Nettlefold  [1909]  1  B.  W.  C.  C.  160,  C.  A.) ;  where  a  miner,  who  traveled 
to  and  from  his  work  in  a  free  train  which  his  employers  arranged  for  with 
the  railroad  company,  and  who  had  indemnified  the  employers  against  acci- 
dent to  himself  or  his  property  on  the  journey,  was  killed  getting  into  the 
train  (Walton  v.  Tredgar  Iron  &  Coal  Co.,  Ltd.  [1913]  6  B.  W.  C.  C.  592,  C. 
A.)  ;  where  a  workman  was  compelled  to  cross  a  river  to  get  to  his  work, 
and  a  boat  provided  by  his  employer  was  the  only  means  of  access,  and  he 
was  drowned  while  so  crossing  (Mole  v.  Wadworth  [1913]  6  B.  W.  C.  C.  129, 
C.  A.)  ;  and  where  a  lighterman,  while  waiting  for  the  tide  to  ebb  sufficiently 
to  allow  him  to  go  to  work  to  pump  out  a  barge,  went  to  a  small  boat  about 
50  yards  from  the  barge  to.  rest,  and  in  trying  to  get  into  the  barge  was  in- 
jured (May  V.  Ison,  7  B.  W.  C.  C.  148,  110  L.  T.  525). 

Where  a  laborer  worked  and  lived  on  a  farm  on  an  island,  and,  wishing  to 
see  his  wife,  was  taken  by  his  employer  across  to  the  mainland  in  a  boat, 
and,  the  weather  being  rough,  slipped  and  fatally  injured  himself  while 
trying  to  land,  the  accident  was  in  the  course  of  the  employment;  Evans,  P., 
saying:  "I  am  of  opinion  that  it  was  part  of  the  contract,  between  the  man 
and  his  employer,  that  reasonable  facilities  should  be  given  him,  by  means 
of  the  boat,  for  reaching  the  mainland,  in  order  that  he  might  go  home  and 
visit  his  wife."     Richardson  v.  Morris  (1914)  7  B.  W.  C.  C.  130,  C.  A. 

8  9  Where  an  employer  undertakes  to  transport  his  workmen  to  and  from 
their  homes,  or  to  and  from  any  specific  place  of  arrival  and  departure  for 
the  place  of  employment,  his  employes  are  on  the  premises  of  employment 
when  they  step  into  the  vehicle  of  transportation  furnished  by  the  employer, 
and  so  remain  until  they  step  out  of  it,  either  going  or  coming.  Where  an 
employing  painter  is  engaged  in  painting  a  farmhouse,  and  furnishes  his  own 
wagon  to  carry  his  employes  to  the  farmhouse  and  back  before  and  after 
working  hours,  and  an  accident  occurs  on  the  trip  back  to  the  city  at  night, 
in  which  one  of  the  employes  is  injured,  the  employer  or  his  insurance  car- 
rier is  liable  for  compensation  for  disability  due  to  such  injuries.  Oldham  v. 
Southwestern  Surety  Insurance  Co.,  1  Cal.  I.  A.  C.  Dec.  258. 

A  workman  employed  in  the  Canal  Zone,  injured  while  riding  home  from 


§  110  workmen's  compensation  378 

commodation.®"  A  workman  injured  while  riding  to  or  from  his 
work  in  the  conveyance  of  a  third  person  is  not  ordinarily  entitled 
to  compensation.*^ 

work  on  a  labor  train,  was  injured  in  the  course  of  employment.  In  re  Gerow, 
Op.  Sol.  Dept.  of  L.  2S2. 

A  plumber's  assistant,  who  was  returning  from  a  job  and  fell  from  his 
employer's  wagon,  upon  which  he  was  riding,  was  injured  in  the  course  of 
his  employment.    In  re  Sanderson's  Case  (Mass.)  113  N.  E.  355. 

90  The  injury  of  an  employ^,  while  going  home  on  his  employer's  vehicle,  if 
his  presence  there  is  purely  gratuitous  and  only  an  accommodation  to  him, 
is  no  ground  for  compensation,  for  the  passenger  is  a  mere  licensee,  though 
carried  repeatedly.  Henson  v.  Standard  Oil  Co.,  1  Cal.  I.  A,  C.  Dec.  3S3. 
Transportation  to  or  from  work  must  be  included  in  the  contract  of  employ- 
ment to  bring  the  employe,  while  so  transported,  under  the  protection  of  the 
Act.  In  this  case  the  transportation  was  no  part  of  the  contract  of  employ- 
ment, and  compensation  was  denied  to  the  injured  employ^.     Id. 

Where  a  lineman  is  accustomed  to  ride  to  and  from  work  in  a  truck  pro- 
vided by  the  company  to  accompany  its  workmen  from  place  to  place,  but  the 
contract  of  employment  with  the  employer  does  not  provide  for  the  furnishing 
of  transportation,  and  no  change  was  made  in  the  wages  of  the  men,  whether 
they  used  it  or  not,  the  use  of  the  truck  by  the  men  being  a  mere  accommoda- 
tion or  gratuity,  then  an  employg  injured  while  riding  home  on  such  truck 
is  not  entitled  to  compensation.  An  employs  on  his  way  to  and  from  work 
and  off  the  premises  of  the  employer  is  under  the  same  risk  of  accident 
as  of  the  commonalty,  unless  the  accident  occurs  upon  a  conveyance  furnished 
by  the  employer  as  a  part  of  the  payment  for  services  rendered.  Cook  v. 
Home  Telephone  &  Telegraph  Co.,  2  Cal.  I.  A.  C.  Dec.  120. 

The  absence  of  any  right  to  conveyance  under  the  contract  of  employment 
led  to  a  decision  that  the  accident  did  not  arise  in  the  course  of  the  em- 
ployment, where  employers  provided  a  train  free  as  a  gratuitous  convenience, 
but  were  under  no  contract  to  do  so,  and  a  collier,  who  was  entitled  to  ride 
on  the  train  from  his  work,  was  injured  (Davies  v.  Rhymney  Iron  Co.,  Ltd. 
[1900]  2  W.  C.  C.  22,  C.  A.) ;  where  a  shepherd,  who  was  heing  conveyed  (as 
is  the  general  custom  among  farmers)  to  the  home  of  a  farmer  who  had 
hired  him,  in  a  wagon  sent  by  the  farmer,  was  thrown  out  of  the  wagon  and 
killed  (Whitebread  v.  Arnold  [1909]  1  B.  W.  C.  C.  317,  C.  A.)  ;  and  where  a 
workman  was  run  down  by  a  motor  lorry  and  killed,  while  cycling  home  after 
his  day's  work,  on  a  bicycle  provided  by  his  employers  with  which  to  make 
visiting  rounds  (Edwards  v.  Wingham  Agricultural  Implements  Co.,  Ltd.  [1913] 
6  B.  W.  C.  C.  511,  C.  A). 

ei  Where  a  laborer  on  a  highway  was  brought  to  his  place  of  employment 
by  a  passing  automobile  as  a  friendly  act,  and  while  in  the  act  of  alighting, 


379  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    111 

§  111.     Leisure  periods — Attendance  on  personal  comforts  and  ne- 
cessities 

It  cannot  be  said  that  the  employment  is  broken  by  mere  inter- 
vals of  leisure  such  as  those  taken  for  a  meal.  If  an  accident  hap- 
pened at  such  a  time,  there  would  be  no  break  in  the  employment/^ 
even  though  the  workman  is  paid  by  the  hour  for  the  time  he  is 

and  before  he  had  presented  himself  ready  for  work,  lost  his  balance  and 
fell,  the  injury  did  not  happen  in  the  course  of  his  employment.  Beatty  v. 
County  of  Los  Angeles,  2  Cal.  I.  A.  C.  Dec.  1958. 

An  employe  of  a  contractor  engaged  in  road  construction  fell  off  of  one  of 
his  employer's  wagons,  on  which  he  was  riding,  and  died  as  the  result  of 
injuries  thereby  sustained.  The  employer  did  not  furnish  transportation 
to  its  employes  to  and  from  their  work.  The  employe  had  not  reported  for 
work  at  the  time  he  received  the  injury  which  resulted  in  his  death,  the  place 
where  the  injury  was  sustained  being  a  mile  or  two  from  his  place  of  employ- 
ment. The  injury  was  not  sustained  in  the  course  of  employment.  In  re 
Mrs.  C.  Schmitt,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  81.  An  employe, 
injured  by  falling  off  of  a  conveyance  on  which  he  was  riding  from  his  place 
of  employment  toward  his  home,  said  conveyance  not  being  provided  by  his 
employer,  and  the  contract  of  employment  being  silent  in  reference  to  means 
of  conveyance  to  and  from  work,  though  the  employe  is  paid  by  the  employer 
for  the  time  necessarily  consumed  in  going  to  and  from  his  work,  is  not 
injured  while  in  the  course  of  his  employment.  In  re  Herbert  W.  Anderson, 
vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  90. 

82  Brice  v.  Lloyd,  Ltd.  (1910)  2  B.  W.  C.  C.  26. 

Injuries  received  by  an  employe  on  stairs  which  she  necessarily  used  in 
going  from  the  room  in  which  she  worked  to  get  her  lunch  arose  out  of  and 
in  the  course  of  her  employment,  though  the  stairs  were  not  under  her  em- 
ployer's control.  (St.  1911,  c.  751,  pt.  2,  §  1)  In  re  Sundine,  218  Mass.  1,  105 
N.  E.  433,  L.  R.  A.  1916A,  318. 

In  North  Carolina  R.  Co.  v.  Zachary,  232  U.  S.  248,  34  Sup.  Ct.  305,  58  L. 
Ed.  591,  Ann.  Cas.  1914C,  159,  an  engineer,  who  had  prepared  his  engine 
for  a  trip,  had  left  it  to  go  to  his  boarding  house,  a  short  distance  away,  and 
was  run  over  and  killed  while  crossing  a  track  en  route  to  his  house,  was  held 
to  be  in  the  employ  of  the  company;  the  court  saying:  "There  is  nothing 
to  indicate  that  this  brief  visit  to  the  boarding  house  was  at  all  out  of  the 
ordinary  or  was  inconsistent  with  his  duty  to  his  employer.  It  seems  to  us 
clear  that  the  man  was  still  'on  duty,'  and  employed  in  commerce,  notwith- 
standing his  temporary  absence  from  the  locomotive  engine." 


§  111  workmen's  compensation  380 

actually  at  work,®^  especially  where  the  accident  occurs  on  the  em- 
ployer's premises,^*  or  about  his  property ,°^  unless  the  workman  is 

93  Where  a  bricklayer  was  paid  by  the  hour  for  the  time  he  was  actually 
working,  and  a  wall  fell  on  him  while  he  was  eating  dinner  on  the  works, 
the  accident  was  in  the  course  of  the  employment.    Blovelt  v.   Sawyer  (1904) 

6  W.  C.  C.  16,  C.  A.  (Act  of  1S97). 

94  "A  workman's  employment  is  not  confined  to  the  actual  work  upcn  which 
he  is  engaged,  but  extends  to  those  actions  which  by  the  terms  of  his  em- 
ployment he  is  entitled  to  take,  or  where  by  the  terms  of  his  employment 
he  is  taking  his  meals  on  the  employer's  premises."  Farwell,  L.  J.,  in  Brice 
V.  Lloyd,  Ltd.  (1910)  2  B.  W.  C.  C.  26. 

The  rule  that  the  workman  does  not  cease  to  be  such  while  eating  his  lunch 
on  his  employer's  premises  at  a  place  where  he  may  safely  do  so,  and  not  at 
an  especially  forbidden  place  or  a  place  of  obvious  danger,  does  not  apply 
to  cases  where  the  employe  leaves  the  premises  of  his  employer  to  eat  his 
lunch  during  the  time  set  apart  for  this  purpose.  Hills  v.  Blair,  182  Mich. 
20,  148  N.  W.  243. 

In  Barrett  v.  Shartenberg  &  Robinson  Co.,  1  Conn.  Comp.  Dec.  305,  where 
the  claimant  fell  as  she  was  stepping  from  the  step  of  her  employer's  building 
to  the  sidewalk,  when  leaving  at  noon  to  go  home  to  lunch,  and  fractured 
her  arm,  compensation  was  awarded. 

Where  a  laborer  on  a  railroad  culvert  was  fatally  injured  while  crossing 
the  track  to  go  to  his  dinner  in  the  bunk  car  at  the  call  of  his  foreman,  the 
accident  arose  in  the  course  of  his  employment.  Carini  v.  Nickel  Plate  R.  R. 
Co.,  4  N.  T,  St.  Dep.  Rep.  423. 

Where  an  employ^  was  bitten  by  a  spider  during  the  noon  hour,  the  fact 
that  the  accident  did  not  occur  while  she  was  directly  engaged  in  performing 
a  service  in  the  course  of  her  employment  would  not  prevent  an  award  allow- 
ing compensation,  if  there  were  evidence  to  show  that  she  were  exposed  to 
any  special  risk  of  being  so  bitten  by  reason  of  the  character  of  the  premises 
or  nature  of  the  work  being  done.  Sterling  v.  Inderredian  Co.,  2  Cal.  I.  A.  C. 
Dec.  172.  Accidents  occurring  on  the  employer's  premises  during  such  inter- 
vals have  been  held  to  be  in  the  course  of  the  employment,  where  a  work- 
man employed  by  the  week  was  injured  on  his  way  to  lunch,  at  the  noon 
hour,  having  left  the  workroom,  and  being  in  the  act  of  descending  the  stair- 
way, which  is  in  control  of  the  owner  of  the  building,  but  which  the  employer 
and  his  employes  have  the  right  to  use  as  the  only  means  available  for  going 
to  and  from  the  workman's  place  of  employment  (Sundine's  Case,  218  Mass. 

9  5  Where  a  girl  who  was  employed  on  the  top  of  a  threshing  machine  was 
partaking  of  refreshments  given  her  by  her  employer,  and  was  injured,  the 
accident  was  in  the  course  of  the  employment.     Carinduff  v.  Gilmore  (1914) 

7  B.  W.  C.  C.  981,  C.  A. 


381  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §111 

doing  something  wholly  foreign  to  his  employment.^^  Acts  of  min- 
istration by  a  servant  to  himself,  such  as  quenching  his  thirst,  re- 
lieving his  hunger,  protecting  himself  from  excessive  cold,  perform- 
ance of  which  while  at  work  are  reasonably  necessary  to  his  health 
and  comfort,  are  incidents  to  his  employment  and  acts  of  service 
therein  within  the  Workmen's  Compensation  Acts,^^  though  they 

1,  105  N.  E.  433,  L.  R.  A.  1916A,  818)  ;  where  a  piece  of  mortar  fell  from 
the  celling  in  a  servant's  bedroom  into  her  eye,  the  dangerous  condition  of 
the  ceiling  being  known  to  the  employer  (Alderidge  v.  Merry  [1913]  6  B.  W. 
C.  C.  450,  C.  A.)  ;  where  a  teamsman,  eating  his  dinner  in  his  employer's 
stable,  which  was  his  proper  place,  was  bitten  by  the  stable  cat  (Rowland  v. 
Wright  [1909]  1  B.  W.  C.  C.  192,  C.  A.)  ;  and  where  a  railway  guard  was 
waiting  at  a  station  in  accordance  with  his  instructions  in  an  interval  of 
duty,  and  sitting  down  upon  a  buffer  stop  (not  an  unsafe  place),  fell  from  it 
onto  the  line  and  was  fatally  injured  (Sheehy  v.  Great  Southern  and  Western 
Railway  Co.  [1913]  6  B.  W.  C.  C.  927,  C.  A.). 

96  In  Socquet  v.  Connecticut  Mills  Co.,  1  Conn.  Comp.  Dec.  653,  where  the 
claimant  was  injured  while  giving  a  co-employe  a  ride  on  a  truck  used  for 
carrying  beams,  during  the  noon  hour  and  after  she  had  finished  her  lunch, 
being  allowed  to  eat  lunch  on  the  premises  by  her  employer,  the  injury  did  not 
arise  in  the  course  of  her  employment.  In  Cavagnero  v.  American  Mills  Co., 
1  Conn.  Comp.  Dec.  163,  it  was  held,  where  the  breaking  of  the  claimant's  leg 
was  due  to  moving  toward  a  fellow  employg  in  order  to  better  hear  some 
remarks  on  politics  or  religion,  unconnected  with  the  employment,  while  on 
the  premises  during  his  noonday  lunch  hour,  that  the  injury  was  not  sustained 
in  the  course  of  the  employment.  In  Varine  v.  Sargeant,  1  Conn.  Comp.  Dec. 
194,  it  was  held  that  where  an  employe,  boarding  at  his  employer's  shanty 
until  more  work  could  'be  begun,  was  injured  while  splitting  kindling  wood 
for  the  cook,  who  was  sick,  it  being  customary  for  those  living  in  the  shanty 
to  help  do  chores  and  necessary  duties,  he  was  not  in  the  course  of  his  em- 
ployment. 

97  Archibald  v.  Ott  (W.  Va.)  87  S.  E.  791. 

An  employe  in  the  course  of  his  employment  may  do  any  act  of  a  personal 
nature  that  a  person  might  reasonably  do,  not  in  conflict  with  specific  in- 
structions given,  without  passing  beyond  the  protection  of  the  Compensation 
Act.    Espy  v.  Crossman,  2  Cal.  I.  A.  C.  Dec.  328. 

Where  a  school-teacher,  after  dismissing  her  school  for  the  day,  remains 
upon  the  school  premises  to  finish  her  work,  and,  going  to  the  telephone  for  a 
moment  to  send  a  message  upon  private  business,  is  injured  by  tripping  over 
the  telephone  cord  and  falling,  the  accident  occurs  in  the  course  of  her  em- 
ployment.   Rieff  V.  City  of  Sacramento,  2  Cal.  I.  A.  C.  Dec.  223. 


§  111  workmen's  compensation  382 

are  only  indirectly  conducive  to  the  purpose  of  the  employments^ 
Consequently  no  break  in  the  employment  is  caused  by  the  mere 
fact  that  the  workman  is  ministering  to  his  personal  comforts  or 
necessities,""  as  by  warming  himself/   or  seeking  shelter,^  or  by 

9  8  (Laws  1913,  c.  10;  Code  1913,  c.  15P,  §§  1-55  [sees,  657-711])  Archibald 
V.  Ott  (W.  Va.)  87  S.  E.  791. 

99  Id. 

Chief  Justice  Winslow,  of  the  Supreme  Court  of  Wisconsin,  says  in  a 
recent  case  (Northwestern  Iron  Co.  v.  Industrial  Commission,  160  Wis.  633, 
152  N.  W.  416):  "The  only  question  is:  Does  it  show  at  the  time  of  the 
accident  the  claimant  was  not  performing  service  growing  out  of  or  incidental 
to  his  employment?  We  think  not.  The  man's  duties  involved  periods  of 
leisure  during  which  apparently  he  was  expected  to  kill  time  as  best  he  might, 
with  no  specific  direction  as  to  what  he  should  do  or  where  he  should  wait. 
The  night  was  cold,  and  he  put  off  dumping  the  car  until  he  could  warm  him- 
self from  its  heated  contents.  To  say  that  in  so  doing  he  had  left  his  master's 
employment,  was  pursuing  his  own  private  purposes,  and  doing  something 
foreign  to  the  work  he  was  employed  to  do,  is  illogical  to  a  degree.  To  pro- 
tect himself  from  undue  and  unnecessary  exposure  to  the  cold  was  a  duty  he 
owed  his  master  as  well  as  himself,  and  it  does  not  follow  that  he  left  his 
master's  employment  because  he  negligently  allowed  the  second  car  to  run 
into  him  while  he  was  warming  himself." 

Workmen  temporarily  pursuing  their  own  purposes  were  injured  in  the 
course  of  their  employment:    Where  a  cook  went  out  upon  a  porch  attached 

1  That  a  workman  put  off  dumping  a  car  until  he  could  warm  himself  from 
its  heated  contents  did  not  show  that  he  was  doing  something  foreign  to  his 
employment ;  it  being  a  duty  owed  to  his  master  as  well  as  to  himself  to 
protect  himself  from  undue  and  unnecessary  exposure  and  cold.  Northwestern 
Iron  Co.  V.  Indus.  Com.,  160  Wis.  633,  152  N.  W.  416. 

Where  an  engine  driver  left  his  engine  and  crossed  four  or  five  sets  of 
rails  to  ask  an  official  a  question  about  his  work,  and  then  crossed  two  further 
sets  to  talk  to  a  fellow  employe  for  his  own  pleasure,  and  was  killed  while 
recrossing  the  last-mentioned  set  of  rails,  the  accident  was  nevertheless  in 
the  course  of  the  employment.  Goodlet  v.  Caledonian  Ry.  Co.  (1902)  4  F.  986 
(Act  of  1897). 

2  Where  a  lineman,  while  engaged  in  erecting  a  new  line,  was  forced  by  a 
^  iolent  rainstorm  to  seek  shelter  with  others  under  cars  standing  on  a  switch, 
no  other  shelter  having  been  provided  by  his  employer,  and  was  injured  from 
these  cars  being  unexpectedly  moved,  the  injury  arose  in  the  course  of  the 
employment.  (Workmen's  Compensation  Law,  §  10)  Moore  v.  Lehigh  Valley 
R.  Co.,  169  App.  Div.  177,  154  N.  Y.  Supp.  620. 


383  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION  DUB  §    111 

leaving  his  work  to  relieve  nature,^  or  to  procure  drink,*  refresh- 
to  the  kitchen  where  he  was  employed,  to  smoke  a  pipe,  and  fell  down  the 
basement  stairs  on  his  return,  and  suffered  a  fracture  of  the  wrist  (Espy  v. 
Grossman,  2  Cal.  I.  A.  C.  Dee.  32S) ;  where  a  housekeeper  of  a  hotel,  in  which 
she  resided,  who  was  required  to  be  available  at  all  hours,  but  who  com- 
menced her  active  work  at  8  o'clock  a.  m.,  was  injured  at  7  a.  ra.  while  going 
for  hot  water  for  toilet  purposes  (Leonard  v.  Fremont  Hotel,  2  Cal.  I.  A.  C. 
Dec.  99S) ;  where  a  workman  riding  on  a  wagon  dropped  his  pipe,  and  on 
getting  down  to  pick  it  up  fell  under  the  wheels  and  was  fatally  injured 
(McLauchlan  v.  Anderson  [1911]  4  B.  W.  O.  C.  376)  ;  and  where  a  fence  on 
which  a  carter  was  resting  while  his  cart  was  emptied  gave  way,  and  he  was 
fatally  injured  by  the  fall  (Henderson  v.  Glasgow  Corporation  [1900]  2  F. 
1127  [Act  of  1S97]). 

3  Where  an  employer  failed  to  furnish  proper  toilet  facilities  for  his  work- 
men, but  knew  and  consented  to  a  custom  of  using  another  building  across  a 
public  street  for  such  purpose,  and  a  workman  crossing  the  street  during 
working  hours  on  his  way  to  the  toilet  in  question  was  struck  by  a  passing 
vehicle  and  killed,  the  accident  arose  in  the  course  of  his  employment. 
Zabriskie  v.  Erie  R.  Co.,  86  N.  J.  Law,  266,  92  Atl.  385,  L.  R.  A.  1916A,  315. 

Injury  to  the  eye  was  received  in  the  course  of  the  employment,  where  the 
employe,  while  in  the  toilet,  felt  something  strike  her  arm,  and  looked  through 
a  crack  to  see  where  the  article  had  come  from,  whereupon  a  girl  in  the 
adjoining  toilet  thrust  some  scissors  through  the  crack  into  her  eye.  De 
Fillipis  V.  Falkenberg,  170  App.  Div.  153,  155  N.  Y.  Supp.  761. 

A  collier  in  a  mine,  injured  after  leaving  his  work  to  relieve  nature,  was 
injured  in  the  course  of  his  employment.  Cook  v.  Manvers  Main  Collieries, 
Ltd.  (1914)  7  B.  W.  C.  C.  696,  C.  A. 

4  A  workman  may,  without  taking  himself  outside  of  the  course  of  employ- 
ment, do  those  things  which  any  reasonable  person  might  do,  although  not 
strictly  in  the  line  of  duty  or  course  of  his  employment.  He  may  go  for  a 
drink,  and  if,  while  going  or  returning,  he  slips  and  falls,  injuring  himself,  it 
would  be  proper  to  regard  the  injury  as  arising  out  of  the  employment. 
Koch  V.  Oakland  Brewing  &  Malting  Co.,  1  Cal.  I.  A.  C.  Dec.  373. 

Where  an  employe's  death  was  due  to  his  being  poisoned  by  drinking  from 
a  bottle  a  poisonous  fluid  having  the  appearance  of  water,  under  the  impres- 
sion that  it  was  drinking  water,  while  he  was  at  work  on  premises  at  which 
workmen  supplied  themselves  with  drinking  water  from  a  neighboring  well  by 
means  of  buckets  and  bottles,  on  account  of  the  unsanitary  condition  of  the 
city  water  furnished  in  the  building  by  means  of  pipes,  the  injury  arose  in 
the  course  of  his  employment.    Archibald  v.  Ott  (W.  Va.)  87  S.  E.  791. 

Where  a  miner  left  his  work  to  get  a  drink  of  water,  and  was  killed  by  a 
runaway  hutch,  the  accident  was  in  the  course  of  the  employment.  Keenan 
V.  Flemington  Coal  Co.,  Ltd.  (1903)  5  F.  164,  Ct.  of  Sess. 


Ill 


WORKMEN  S  COMPENSATION 


884 


ments/  food,®  or  fresh  air/  or  to  rest  in  the  shade.'    Nor  is  a  break 
caused  because  the  workman  is  giving  assistance  personal  to  a  fel- 


5  Leaving  the  work  to  procure  refreshments  did  not  take  the  accident  out 
of  the  course  of  the  employment,  where  a  drayman  who  was  employed  on 
the  public  streets  all  day,  without  any  interval  for  refreshment,  went  into  a 
public  house  for  a  glass  of  beer,  and  was  killed  while  crossing  the  road  to 
rejoin  his  dray  (Martin  v.  Lovibond  &  Sons,  Ltd.  [1914]  7  B.  W.  C.  C.  243,  C. 
A.);  where  a  workman,  employed  for  25  hours  to  watch  vessels,  went  to  a 
public  house  for  refreshment,  and  on  returning,  while  descending  a  ladder 
at  the  quay  side  to  get  on  one  of  the  vessels,  fell  and  was  drowned  (.Tackson 
V.  General  Steam  Fishing  Co.,  Ltd.  [1910]  2  B.  W.  C.  C.  56,  H.  L.,  Ct.  of 
Sess.)  ;  and  where  a  shipmaster,  returning  from  paying  a  laborer's  wages  at 
a  public  house  ashore,  at  which  he  had  remained  two  hours,  although  he  was 
quite  sober,  fell  from  the  dock  and  was  drowned  (Jones  v.  Owners  of  Ship 
Alice  and  Eliza  [1910]  3  B.  W.  C.  C.  495,  C.  A.). 

6  Claimant's  decedent  was  employed  as  a  carpenter  by  defendant,  and  on 
the  day  of  his  injury  was  working  about  20  feet  from  the  ground  on  the  flat 
roof  of  a  large  building  which  was  being  constructed.  The  weather  being 
very  cold,  the  men  were  called  down  from  the  roof  by  the  foreman  at  about 
9  o'clock  in  the  forenoon  for  a  hot  coffee  lunch,  which  it  was  usual  to  serve 
to  the  men  to  mitigate  the  effects  of  the  cold.  They  generally  descended  by 
an  extension  ladder,  but  decedent  chose  to  descend  by  means  of  a  rope,  and 
in  some  manner  lost  his  hold  of  the  rope  and  was  killed.  The  Board  held 
that  the  act  of  coming  down  from  the  roof  for  coffee  lunch  at  the  foreman's 
call  was  in  the  course  of  deceased's  employment.  Clem  v.  Chalmers  Motor 
Car  Co.,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  40. 

Where,  by  an  arrangement  between  a  railway  company  and  certain  em- 
ployes, they  were  allowed  to  go  to  a  cabin  on  the  railway  company's  premises 
for  certain  meals,  and  one  of  such  employes,  when  returning  from  the  cabin 
after  having  a  meal  there,  was  knocked  down  by  a  car  which  was  being 
shunted  on  one  of  the  company's  tracks,  it  was  held  that  the  injury  arose  in 
the  course  of  the  employment.  Eamshaw  v.  Lancashire  &  Y.  Ry.  Co.,  115  L. 
T.  Jour.  89,  5  B.  W.  C.  C.  28.  A  shanty  into  which  a  night  watchman  had  gone 
to  cook  food  fell  and  injured  him.  Although  he  had  no  business  in  the  shanty, 
or  to  make  a  fire  there  at  night,  the  injury  was  held  to  have  been  sustained 
in  the  course  of  his  employment.  Morris  v.  Lambeth  Borough  Council  (1906) 
8  W.  C.  C.  1,  C.  A.  (Act  of  1897). 

7  In  re  Von  Ette  (Mass.)  Ill  N.  E.  697. 

8  An  employe  is  within  the  course  of  his  employment,  even  though  at  the 
time  of  the  accident  he  is  resting  for  a  short  time  in  the  shade  during  working 
hours.  An  employ^  is  under  the  protection  of  the  Compensation  Act  while 


385  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    111 

low  workman,^  or  is  learning  a  new  phase  of  his  employer's  busi- 
ness after  his  day's  work/"  or  has  formed  an  unexecuted  intent  to 
abandon  his  employment.^^  However,  when  he  has  entirely  left 
his  employment  and  place  of  work  in  the  evening  or  at  any  other 
hour,  from  that  time  until  he  arrives  next  morning  at  the  place 
where  his  field  of  employment  is  he  is  in  the  same  position  as  any 
other  member  of  the  public.  He  carries  with  him  into  such  period 
of  leisure  no  insurance  from  his  employers.^-     Acts  during  leisure 

doing  any  act  which  a  person  may  reasonably  do  during  working  hours,  re- 
gardless of  whether  he  is  actually  at  work  at  the  time  of  the  accident.  Goer- 
ing  V.  Brooklyn  Mining  Co.,  2  Cal.  I.  A.  C.  Dec  141. 

9  A  carter,  who  while  arranging  a  seat  in  order  to  give  a  fellow  workman 
a  lift,  was  thrown  forward  by  the  horse  starting  up,  and  killed,  was  killed 
in  the  course  of  his  employment.  Evans  v.  Holloway  (1914)  7  B.  W.  C.  C. 
248,  C.  A. 

10  Where  a  night  watchman  is  allowed  to  study  the  firing  of  his  employer's 
locomotive  after  hours,  so  as  to  qualify  him  to  serve  as  fireman  when  a 
vacancy  occurs,  but  is  not  paid  anything  for  the  extra  time,  thinking  to 
benefit  himself  because  it  is  the  employer's  policy  to  advance  men  whenever 
possible  within  its  own  labor  force  and  to  have  experienced  men  available, 
and  the  employe  is  accidentally  injured  while  so  studying  on  a  locomotive 
operated  by  the  employer,  he  is  injured  while  acting  in  the  course  of  his 
employment.  Smith  v.  Atchison,  Topeka  &  Santa  Fe  Ry.  Co.,  2  Cal.  I.  A.  C 
Dec.  851. 

11  Where  plaintiff's  intestate  was  killed  when  a  horse  which  he  was  taking 
to  water,  in  the  proper  performance  of  his  duties,  ran  away,  the  fact  that  he 
intended  to  later  use  the  horse  for  his  own  purposes  did  not  take  the  accident 
out  of  the  course  of  his  employment.  Pigeon  v.  Employers'  Liability  Assur. 
Corporation,  216  Mass.  51,  102  N.  E.  932,  Ann.  Cas.  1915A,  737. 

12  Benson  v.  Lancashire  &  Yorkshire  Ry.  Co.  (1904)  6  W.  C.  C.  20,  O.  A. 
(Act  of  1897)  ;  Hills  v.  Blair,  182  Mich.  20,  148  N.  W.  243. 

The  accident  was  not  in  the  course  of  employment  where  a  miner  unneces- 
sarily left  his  working  place  to  ask  the  time  and  was  killed  on  his  way  back 
by  the  fall  of  a  roof  (Warren  v.  Hedley's  Colliery  Co.,  Ltd.  [1913]  6  B.  W.  C. 
C.  136,  C.  A.);  nor  where  a  workman,  whose  employer  had  agreed  to  com- 
pensate him  for  any  injury  by  strikers,  was  assaulted  in  the  market  place 
while  going  home  to  dinner,  and  killed,  by  strikers  (Poulton  v.  Kelsall  [1912] 
5  B.  W.  C.  C.  318,  C.  A.). 
HoN.COMP. — 25 


§  111  workmen's  compensation  386 

periods,  which  are  done  at  home  or  are  wholly  unconnected  with 
the  employment,  are  not  in  the  course  of  the  employment.^' 

13  When  the  employe  dies  at  his  post  of  duty,  a  presumption  may  reason- 
ably be  entertained  that  he  was  then  performing  his  duty  and  engaged  in 
the  work  for  which  he  was  employed,  from  which  a  causal  relation  between 
his  employment  and  the  accident  may  be  inferred;  but  it  is  shown  here  that 
deceased  left  the  locality  and  sphere  of  his  employment  at  a  time  when  work 
was  suspended,  that  he  was  doing  nothing  within  the  scope  of  his  employment, 
was  not  under  the  direction  or  control  of  his  employer,  and  went  away  for 
purposes  of  his  own,  going  where  and  as  he  pleased.  Hills  v.  Blair,  182  Mich. 
20,  148  N.  W.  243. 

\Miere  a  man  whose  duties  were  to  run  a  pump  and  watch  pipe  lines  was 
injured,  while  at  his  home,  by  the  explosion  of  a  dynamite  cap,  set  off  by  a 
match  which  he  lit,  either  to  ignite  his  pipe  or  to  start  a  fire  to  heat  water, 
even  though  the  house  where  he  lives  is  furnished  by  the  employer,  the 
accident  cannot  be  held  to  be  one  in  the  course  of  his  employment.  Edgley  v. 
Firth,  1  Cal.  I.  A.  C.  Dec.  651.  Where  a  traveling  salesman,  while  talking 
sociably  in  the  lobby  of  a  hotel  at  which  he  is  stopping  on  a  business  trip, 
during  a  leisure  period  when  not  selling  goods  or  performing  any  other  duties, 
falls,  fracturing  his  leg,  not  because  of  anything  peculiar  to  the  hotel  build- 
ing, the  injury  does  not  occur  while  the  employe  is  performing  a  service  in 
the  course  of  his  employment.  Gaskill  v.  Voohies  Co.,  2  Cal,  I.  A.  C.  Dec. 
1020. 

Three  employes  engaged  in  a  race  during  the  noon  hour,  the  claimant  falling 
and  receiving  an  injury  which  incapacitated  her  for  work.  The  injury  was 
not  in  the  course  of  the  employment.  Thompson  v.  Employers'  Liability  Assur. 
Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  145  (decision  of  Com.  of  Arb.).  The 
employe  received  a  personal  injury  while  he  was  in  the  building  which  his 
employer  had  contracted  to  construct;  but  he  was  not  in  the  employ  at  that 
time,  having  visited  the  building  for  purposes  of  his  own,  and  not  being 
engaged  in  the  work  of  his  employer.  Held,  that  the  injury  did  not  arise 
in  the  course  of  his  employment.  Lynn  v.  Employers'  Liability  Assur.  Corp., 
Ltd.,  2  Mass.  Wk.  Comp.  Cases,  507  (decision  of  Com.  of  Arb.,  affirmed  by 
Indus.  Ace.  Bd.). 

The  working  hours  of  a  section  foreman  on  a  railroad  ended  at  5  o'clock 
p.  m.  on  Saturday  evening  and  did  not  begin  again  until  the  following  Monday 
at  6  a.  m.  On  Sunday,  at  11:30  a.  m.,  while  walking  across  a  trestle  of  the 
road,  he  fell  to  the  ground  below  and  was  fatally  injured.  The  regular 
duties  of  the  foreman  related  to  track  work  only,  the  repair  of  bridges  and 
trestles  being  done  by  another  gang,  and  it  did  not  appear  that  the  foreman 
had  been  ordered  to  perform  any  duty  in  connection  with  the  trestle  by  any 
one  having  authority  over  him ;  nor  did  it  appear  that  there  were  any  cir- 
cumstances to  justify  the  foreman's  voluntarily  going  on  duty  at  a  time  not 


387  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION  DUE  §    111 

The  leisure  of  a  sailor  on  board  the  vessel  is  as  much  in  the 
course  of  his  employment  as  active  work.^^  A  seaman  going  ashore 
without  leave  is  not  doing  what  he  might  reasonably  do.  He  sim- 
ply has  left  his  employment  for  a  time.  It  is  otherwise  if  he  goes 
ashore  with  a  leave,  for  the  employment  is  continuous  and  implies 
leisure  as  well  as  labor.^^     Death  did  not  occur  in  the  course  of 

usually  required  by  his  employer.  It  was  held  that  the  foreman  did  not  lose 
his  life  in  the  course  of  his  employment.  In  re  Julia  A.  Watkins,  vol.  1,  No. 
7,  Bui.  Ohio  Indus.  Com.  p.  135.  The  services  of  an  employe  regularly  em- 
ployed by  a  corporation  were  loaned  to  one  of  the  officers  and  directors  there- 
of to  perform  temporary  service  in  the  private  business  of  the  director.  While 
performing  such  service  the  workman  was  on  the  premises  of  such  director 
and  officer,  and  the  work  was  done  under  his  direction  and  supervision.  While 
performing  such  service  the  employe  was  injured.  The  Commission  held  that 
the  injury  was  not  in  the  course  of  employment.  (Page  &  A.  Gen.  Code, 
§§  1465-59)  In  re  Wm.  A.  Jones,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  57. 

A  laborer  who,  having  had  his  fingers  frozen  in  course  of  employment, 
later  burned  his  fingers  at  home  by  accidentally  setting  fire  to  the  bandages, 
was  not  injured  as  to  the  burn  in  the  course  of  employment.  In  re  Rockwell, 
Op,  Sol.  Dept.  of  L.  307.  Where  a  laborer,  employed  by  the  United  States  in 
the  construction  of  river  and  harbor  work,  while  oft  duty  went  upon  a  bin 
to  talk  with  the  man  emptying  gravel  about  going  home  the  following  Sunday, 
and  in  the  act  of  leaving,  voluntarily  and  with.no  emergency  for  immediate 
action,  attempted  to  empty  a  box  of  gravel,  and  in  so  doing  fell  overboard 
and  was  drowned,  the  accident  is  deemed  not  to  have  arisen  within  the  course 
of  his  employment,  and  compensation  therefor  is  unauthorized  under  Act  May 
30,  1908,  c.  236,  35  Stat.  556  (U.  S.  Comp.  St.  1913,  §§  8923-8929).  In  re  H. 
G.  Simpson  (Op.  Atty.  Gen.)  Op.  Sol.  Dept.  of  L.  319. 

14  Marshall  v.  Owners  of  Wild  Rose  (1910)  3  B.  W.  C.  C,  at  page  79. 
Where  a  deck  hand  on  a  freight  steamer  proceeding  on  its  journey,  having 

just  finished  his  evening  meal  and  not  having  any  duties  to  perform,  acci- 
dentally falls  overboard  while  going  forward  and  is  drowned,  the  accident 
arose  while  performing  a  service  growing  out  of  and  incidental  to  his  em- 
ployment.   Olsen  V.  Hale,  2  Cal.  I.  A.  C.  Dec.  607. 

15  Moore  V.  Manchester  Liners,  Ltd.  (1910)  3  B.  W.  C.  C.  527,  H.  L.,  and  2 
B.  W.  C.  C.  87,  C.  A. 

The  accident  was  in  the  course  of  the  employment,  where  a  gangway  con- 
necting a  seaman's  ship  with  another  vessel  lying  between  it  and  the  quay 
slipped  while  he  was  crossing  it  in  returning  after  a  leave  of  absence  ashore 
for  his  own  purposes,  and  he  was  thrown  off  into  the  water  and  drowned 
(Leach  v.  Oakley,  Street  &  Co.  [1911]  4  B.  W.  C.  C.  91,  O.  A.)  ;    where  a  sea- 


§  112  workmen's  compensation  388 

employment  where  an  employe  was  furnished  quarters  on  a  boat 
for  living  purposes,  and  after  working  hours  left  the  boat  to  visit 
a  neighboring  town,  and  upon  returning,  and  before  reaching  the 
boat,  was  drowned,^^  nor  where  an  employe  who  lived  on  a  dredge 
went  ashore  for  his  own  purposes,  and  on  returning  in  an  intoxi- 
cated condition  fell  from  a  dock  not  owned  by  his  master,  before 
the  arrival  of  a  boat  to  take  him  to  the  dredge.^^  This  latter  case 
is  distinguishable  from  the  case  where  a  seaman  goes  ashore  to  ob- 
tain from  himself  necessaries  not  provided  by  the  owners  of  the 
ship,  and  on  returning  falls  from  a  ladder  which  is  the  only  means 
of  access  from  the  dock  to  the  ship.^.^ 

§  112.     Negligence  and  recklessness 

That  a  man  takes  a  wrong  way  to  do  his  work  does  not  show  that 
he  is  not,  at  the  time,  in  the  course  of  doing  it.  That  a  man  is  not 
at  any  given  time  in  the  course  of  his  employment  means  that  he 
has  for  the  time  ceased  his  work  to  do  something  else.^^  A  clear 
distinction  exists  in  cases  under  the  Workman's  Compensation  Acts 
between  doing  recklessly  or  negligently  a  thing  which  the  work- 
man is  employed  to  do  and  doing  a  thing  altogether  outside  and 
unconnected  with  the  employment.  A  peril  which  arises  from  the 
neg-liffent  or  reckless  manner  in  which  he  does  the  work  which 


-fe^'tj^ 


man  fell  from  the  quay  and  was  drowned,  when  he  was  returning  from  a 
leave  of  absence  ashore  (Craig  v.  Owners  of  S.  S.  Calabria  [1914]  7  B.  W.  C. 
C.  932,  Ct.  of  Sess.)  ;  and  where  ship's  steward,  who  went  ashore  with  leave, 
returned  by  the  cargo  skid,  which  the  crew  often  used,  though  they  were  for- 
bidden to,  instead  of  by  the  gangway,  and  in  stepping  from  the  skid  he  fell 
into  the  hold  and  was  fatally  injured  (Robertson  v.  Allan  Bros.  &  Co.,  Ltd. 
[1909]  1  B.  W.  C.  C.  172,  C.  A.). 

16  In  re  Jackson,  Op.  Sol.  Dept.  of  L.  320. 

17  Berg  V.  Great  Lakes  Dredge  &  Dock  Co.,  158  N.  Y.  Supp.  718. 

18  Moore  v.  Manchester  Liners,  3  B.  W.  C.  C.  527;    Berg  v.  Great  Lakes 
Dredge  &  Dock  Co.,  158  N.  Y.  Supp.  718. 

19  Durham  v.  Brown  Bros.  Co.,  Ltd.  (1899)  1  F.  278,  Ct.  of  Sess.   (Act  of 
1897). 


389  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    112 

he  is  employed  to  do  may  well,  and  in  most  cases  rightly,  be  held 
to  be  a  risk  incidental  to  the  employment.^" 

20  Barnes  v.  Nunnery  Colliery  Co.,  Ltd.  (1911)  4  B.  W.  C.  C.  43,  C.  A.  and 
(1912)  5  B.  W.  C.  C.  195,  H.  L. 

When  an  injury  arising  from  a  risk  of  the  business  is  suffered  while  the 
employ^  is  doing  the  thing  which  his  employment  fairly  requires  him  to  do, 
he  will  be  entitled  to  compensation  (except  when  the  injury  is  caused  by  the 
willful  and  serious  misconduct  of  the  injured  employe,  or  by  his  intoxication), 
although  he  was  doing  the  work  in  a  negligent  or  unusual  way.  Mann  v. 
Glastonbury  Knitting  Co.,  90  Conn.  116,  96  Atl.  368.  But  in  Wheatley  v. 
Journal  Publishing  Co.,  1  Conn.  Comp.  Dec.  110,  it  was  held  that  where  a 
typesetter,  working  overtime  late  at  night,  went  out  for  lunch  by  an  unusual 
way,  over  a  freight  elevator  through  a  rear  door  used  only  to  admit  freight, 
and  on  returning  stepped  into  an  open  space  between  the  elevator  and  the 
street,  his  injury  did  not  arise  in  the  course  of  his  employment. 

The  accident  has  been  held  to  be  in  the  course  of  the  employment,  in  spite 
of  negligence  or  imprudence,  where  a  workman  who,  on  being  instructed  by 
a  subforeman  to  come  down  off  a  roof  where  he  was  working,  for  lunch,  de- 
scended by  means  of  a  loose  rope  extending  over  the  edge  of  the  roof,  the 
end  of  which  he  directed  a  fellow  workman  to  hold  for  him,  instead  of  using 
a  ladder  securely  fastened  to  the  side  of  the  building  (Clem  v.  Chalmers 
Motor  Co.,  178  Mich.  340,  144  N.  W.  848,  L.  R.  A.  1916A,  352) ;  where  a  work- 
man of  an  ice  company  was  employed  to  see  that  none  cut  holes  in  the  ice 
for  fishing,  but  was  not  given  any  instructions  as  to  methods,  and,  the  ice 
breaking  while  he  was  near  the  center  of  the  pond,  he  was  drowned  (Jillson 
V.  Ross  [R.  I.]  94  Atl.  717) ;  where  an  employe,  employed  by  a  brewing  com- 
pany to  care  for  and  drive  a  team  of  horses  used  in  transporting  a  beer 
wagon,  was  injured  by  falling  out  of  a  door  in  the  second  story  of  a  building 
in  which  the  horses  were  kept,  while  he  was  preparing  to  feed  them  (In  re 
Earl  Puterbaugh,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  143) ;  where  a  farm 
bailifC,  who  needed  something  from  a  cowshed  which  was  locked,  and  did  not 
want  to  go  home  for  the  key,  imprudently  got  up  on  the  window  sill  in  an  ef- 
fort to  reach  what  he  wanted,  slipped,  and  was  killed  in  the  fall  (Pepper  v. 
Sayer  [1914]  7  B.  W.  C.  C.  616,  C.  A.) ;  where  a  seaman,  who  was  helping  to 
unload  fish,  swung  himself  onto  the  stern  of  another  trawler  in  order  to  get 
off  a  sloping  board,  down  which  fish  baskets  were  slid,  so  that  it  might  be 
adjusted,  and  in  so  doing  fell  into  the  water,  and  died  of  the  result  (Gallant 
r.  S.  S.  "Gabir"'  Owners  of  [1913]  6  B.  W.  C.  C.  9,  C.  A.)  ;  where  a  workman, 
seeking  to  find  out  the  cause  of  a  leak  from  a  tank,  climbed  up  to  it  by  an 
obviously  dangerous  way,  instead  of  by  a  perfectly  safe  way  which  was  pro- 
vided, and  was  killed  by  some  machinery  which  was  close  (Durham  v.  Brown 
Bros.  &  Co.,  Ltd.  [1899]  1  F.  278,  Ct.  of  Sess.  [Act  of  1897]);  where  a  window 
cleaner  tried  to  get  from  the  window  he  had  just  finished  to  the  next  by 


§  113  workmen's  compensation  390 

§  113.     Disobedience 

Disobedience  to  an  order  or  breach  of  a  rule  is  not  of  itself  suf- 
ficient to  disentitle  a  workman  to  compensation,^^  so  long  as  he 
does  not  go  outside  the  sphere  of  his  employment.^^     There  are 

crawling  along  a  narrow  ledge,  instead  of  going  back  into  the  room,  and  was 
injured  (Bullwortby  v.  Glanfield  [1914]  7  B.  W.  C.  C.  191,  C.  A.) ;  and  where 
an  engine  driver,  on  his  way  down  to  report  at  the  station  after  leaving  his 
engine,  walked  between  the  rails,  although  he  knew  a  train  on  that  track  had 
been  signaled,  and  was  killed.  (Todd  v.  Caledonian  Ry.  Co.  [1S99]  1  F.  1047, 
Ct.  of  Sess.  [Act  of  1897]). 

2iMcWilliam  v.  Great  North  of  Scotland  Railway  Co.  (1914)  7  B.  W.  C.  C. 
875,  Ct.  of  Sess.,  and  (1914)  S.  C.  4.53. 

There  is  no  provision  in  the  Illinois  Act  taking  out  of  the  course  of  his 
employment  one  who  is  injured  as  a  result  of  a  violation  of  an  order  or  as 
the  result  of  willful  negligence.  Reynolds  v.  Mound  City  Water  &  Light  Co., 
Bulletin  No.  1,  111.,  p.  123.  Where  a  workman  is  injured  because  of  an  acci- 
dent that  is  the  result  of  the  violation  of  some  specific  order  concerning 
his  work,  that  may  occur  just  before  his  regular  hours  of  employment  or 
within  a  reasonable  time  thereafter,  in  some  way  connected  or  associated 
with  his  usual  work,  and  the  results  therefrom  redound  to  the  protection  or 
safety  of  the  property  of  his  employer,  or  the  act  is  in  the  interest  of  his/ 
business,  such  a  person  is  not  a  volunteer,  in  the  ordinary  sense  of  the  word, 
but  an  employ§  injured  in  the  course  of  his  employment.  Casparson  v.  Munn, 
Bulletin  No.  1,  111.,  p.  151. 

The  mere  fact  that  an  employ^  is  injured  by  reason  of  his  own  disregard 
of  his  employer's  instructions  does  not  bar  compensation,  unless  the  instruc- 
tions were  purposely  violated  with  a  wilful  intention  to  injure  himself. 
(Code  Supp.  1913,  §  2477ml[a])  Op.  Sol.  Counsel  to  Iowa  Indus.  Com.  (1915) 
p.  24. 

The  violation  by  an  employe  of  a  rule  of  his  employer  does  not  necessarily 
take  him  out  of  the  course  of  his  employment.  Skinner  v.  Strattou  Fire  Clay 
Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  103,  following  Stopyra  v.  U.  S. 
Coal  Co.,  decided  August  19,  1914. 

2  2  Conway  v.  Pumpherston  Oil  Co.,  Ltd.  (1911)  4  B.  W.  C.  C.  392,  Ct.  of 
Sess. 

Where  the  employer,  after  expressing  displeasure  that  a  certain  job  of 
shingling  had  not  been  finished  the  night  before,  said  it  could  not  be  finished 
because  of  snow,  and  told  the  workman  to  go  to  work  at  another  house,  but 
there  were  circumstances  constituting  an  implied  modification  of  such  direc- 
tions, and  which,  it  appeared,  were  not  definite  or  positive,  an  accident  receiv- 


391  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    113 

prohibitions  which  limit  the  sphere  of  employment,  and  prohibi- 
tions which  deal  only  with  conduct  within  such  sphere.  A  trans- 
eel  while  finishing  the  shingling  was  received  in  the  course  of  the  employment. 
Moell  V.  Wilson,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10,  p.  15. 

Disobedience  to  orders  or  rules  did  not  take  the  case  out  of  the  course  of 
the  employment,  where  a  workman  grinding  tools  at  a  machine-driven  grind- 
stone was  injured  when  he  attempted  in  violation  of  his  orders  to  replace  a 
band  which  had  slipped  off  (Whitehead  v.  Reader  [1901]  3  W.  C.  C.  40,  C.  A. 
[Act  of  1897]);  where  one  hired  to  oil  machinery,  but  strictly  forbidden  to 
oil  it  while  it  was  in  motion,  did  so,  and  a  fatal  injury  resulted  (Mawdsley 
v.  West  Leigh  Colliery  Co.,  Ltd.  [1912]  5  B.  W.  O.  C.  SO,  C.  A.) ;  where  al- 
though it  was  contrary  to  the  rules  for  a  workman  to  use  any  machine  but 
his  own,  a  boy  in  a  boot  factory,  on  being  sent  downstairs  to  have  a  sole 
remolded,  and  finding  that  the  person  in  charge  of  the  molding  machine  was 
temporarily  absent,  was  injured  in  trying  to  do  the  work  himself  (Tobin  v. 
Hearn  [1910]  2  Ir.  R.  639,  C.  A.) ;  where  a  workman,  with  duties  both  inside 
and  outside  an  engine  shed,  was  killed  in  attempting  to  go  out  of  the  shed 
by  a  shorter,  but  more  dangerous,  way  under  the  shaft,  although  he  had 
been  told  not  to  use  this  way,  and  was  killed  (McNicholas  v.  Dawson  [1899]  1 
W.  C.  C.  80,  C.  A.  [Act  of  1897]) ;  where  a  workwoman,  hired  to  clean  a  part 
of  a  machine,  proceeded  to  clean  another  part  from  which  the  guard  had  been 
removed,  thus  rendering  it  accessible,  and  was  injured  while  so  doing  (Greer 
v.  Thompson,  Ltd.  [1912]  5  B.  W,  C.  C.  586,  C.  A.) ;  and  where  a  miner,  who 
was  ordered  to  abandon  a  dangerous  spot  from  which  he  was  attacking  a 
particular  block  of  coal,  and  to  attack  it  from  a  safer  place  three  yards 
away,  violated  his  orders  and  was  injured  (Jackson  v.  Denton  Colliery  Co., 
Ltd.  [1914]  7  B.  W.  C.  C.  92,  C.  A.).  Where  a  collier  had  been  instructed  to 
drill  into  the  top  hole  of  a  seam  from  above  in  order  to  draw  off  gases,  the 
seam  in  the  meantime  being  marked  off  as  forbidden  ground,  and  asked  per- 
mission, which  was  refused,  to  enter  the  top  hole  and  see  if  the  drill  was  run- 
ning safe,  he  entered  it  notwithstanding,  and  was  suffocated,  it  was  held  that 
the  injury  occurred  in  the  course  of  the  employment.  Harding  v.  Brynddu 
Colliery  Co.,  Ltd.  (1911)  4  B.  W.  C.  C.  269,  C.  A. 

Accidents  resulting  from  dangerous  acts  in  violation  of  prohibitions  were 
likewise  held  to  be  in  the  course  of  the  employment  where  a  commercial 
traveler,  on  the  business  of  his  employers,  in  a  railway  goods  yard  which  he 
was  forbidden  to  cross  during  shunting,  thought  that  the  shunting  had  been 
stopped,  and  was  killed  trying  to  cross  (Sanderson  v.  Wright,  Ltd.  [1914]  7 
B.  W.  C.  C.  141,  C.  A.) ;  where  a  miner,  needing  a  pick,  went  with  a  naked 
light  into  a  fenced-off  place  which  he  knew  to  be  dangerous  and  forbidden, 
causing  an  explosion  which  resulted  in  his  death  (Conway  v.  Pumpherston 
Oil  Co.,  Ltd.  [1911]  4  B.  W.  C.  C.  392,  Ct.  of  Sess.) ;  where,  although  it  was 
dangerous  and  contrary  to  their  orders,  miners  frequently  ascended,  in  the 


§  113  workmen's  compensation  392 

gression  of  a  prohibition  of  the  latter  class  leaves  the  sphere  of 
employment  where  it  was,  and  consequently  will  not  prevent  re- 
covery of  compensation.  A  transgression  of  the  former  class  car- 
ries with  it  the  result  that  the  man  has  gone  outside  the  sphere.^" 
Collins,  L.  ].,  has  said  on  this  subject:  "I  agree  that  it  is  not  every 
breach  of  a  master's  order  which  will  determine  a  workman's  em- 
ployment so  as  to  excuse  the  master  from  liability  to  his  servant 
for  injury  resulting  from  breach  of  the  orders.  It  is  necessary  to 
see  exactly  what  is  the  sphere  of  the  workman's  employment,  and, 
in  my  judgment,  it  is  and  must  be  competent  for  a  master  to  define 
and  limit  what  that  sphere  of  employment  is.    If  a  workman  acting 

absence  of  officials,  from  lower  to  higher  levels  in  the  mine  by  means  of  a 
sump  shaft  used  for  raising  ore,  and  a  miner  who  did  this,  instead  of  going 
up  a  ladder  provided,  was  Icilled  (Douglas  v.  United  Mineral  Mining  Co.,  Ltd. 
[19001  2  W.  C.  C.  15,  C.  A.  [Act  of  1S97])  ;  where  a  workman,  seeking  some- 
thing necessary  for  his  work,  ascended  to  a  furnace  platform  by  means  of  a 
hoist,  which  was  dangerous  and  forbidden,  although  it  was  not  proved  that 
he  knew  of  the  prohibition,  and  was  killed  (Logue  v.  Fullerton,  Hodgart  and 
Barclay  [1901]  3  F.  1006,  Ct.  of  Sess.  [Act  of  1S97]) ;  where,  some  heating  be- 
ing necessary,  a  ship's  engineer  during  intensely  cold  weather  rigged  up  a 
temporary  stove,  which  he  was  warned  would  be  dangerous  to  use  at  night, 
and  was  asphyxiated  while  so  using  it  (Edmunds  v.  Owners  of  S.  S.  Peterston 
[1912]  5  B.  W.  C.  C.  157,  C.  A.) ;  and  where  a  railway  porter,  after  being 
reprimanded  by  the  station  master  for  jumping  upon  the  footboards  of  in- 
coming trains  in  violation  of  rules  which  had  been  given  to  him,  but  not 
read,  was  injured  in  a  repetition  of  such  act  (McWilliam  v.  Great  North  of 
Scotland  Railway  Co.  [1914]  7  B.  W.  C.  C.  875,  Ct.  of  Sess.,  and  [1914]  S.  C. 
453). 

2  3  Plumb  V.  Cobden  Flour  Mills  Co.,  Ltd.  [1914]  7  B.  W.  C.  C.  6. 

Where  a  workman  took  an  automobile  which  had  been  in  use  by  his  em- 
ployers to  distribute  their  newspaper,  but  which  he,  just  before  taking  it  out, 
had  been  ordered  not  to  use,  his  representative  could  not  recov^er  compensation 
for  his  death.  Reimers  v.  Proctor  Pub.  Co.,  85  N.  J.  Law,  441,  89  Atl.  931 ; 
Barnes  v.  Nunnery  Colliery  Co.,  [1912]  A.  C.  44. 

Where  an  employ^,  attempting  to  go  to  the  place  of  his  employment,  in- 
sists upon  riding  upon  his  employer's  wagon,  contrary  to  the  rules  of  his 
employer  and  the  positive  orders  of  the  driver  of  the  wagon,  and  in  so  doing 
falls  from  the  wagon,  suffering  an  injury,  the  accident  does  not  happen  in  the 
course  of  his  employment.  Gonzales  v.  Lee  Moor  Contracting  Co.,  2  Cal.  I. 
A.  C.  Dec.  302. 


393  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION  DUE  §    113 

within  that  sphere  violates  an  order  of  the  master,  the  master  may 
well  be  responsible.  But  if  the  workman  travels  out  of  the  sphere 
as  limited  by  the  master,  and  acts  in  violation  of  the  master's  or- 
ders, or  if  the  breach  of  the  master's  orders  involves  the  workman's 
traveling  outside  the  sphere  of  his  limited  employment,  I  do  not 
think  that  the  master  would  be  liable  for  the  consequences  of  the 
workman's  acts  either  to  the  workman  or  to  third  persons."  -* 

"Employment"  within  the  meaning  of  these  Acts  refers  rather 
to  the  contract  than  to  the  labor  done  in  pursuance  of  the  con- 
tract. Hence  even  the  disobedience  of  a  specific  order  to  stop  work 
does  not  end  the  employment  for  the  time  being.^^  The  employe's 
knowledge  of  a  rule  and  the  employer's  acquiescence  in  violations 
thereof  may  be  material.  Where  there  was  a  factory  rule  that 
workmen  must  not  run  to  the  time  clock  on  their  way  to  dinner, 
but  such  rule  was  not  strictly  enforced,  and  its  violation  was 
acquiesced  in  by  the  employer,  and  a  workman  while  so  running 
received  fatal  injuries  by  colliding  with  a  fellow  workman,  the  mere 
existence  of  the  rule  did  not  preclude  recovery  of  compensation.^*^ 
In  another  case  the  injury  was  held  to  have  arisen  in  the  course  of 

24  Whitehead  v.  Reader  (1901)  3  W.  C.  C.  40,  C.  A.  (Act  of  1897). 

The  employe's  breach  of  rules  carried  him  outside  the  sphere  of  his  em- 
ployment where  a  collier  in  a  coal  mine  was  ordered  to  cut  coal  in  the  col- 
liery, and  left  his  work  and  went  to  cut  coal  in  a  part  of  the  mine  where  it 
was  forbidden  by  special  rule  to  cut  any,  and  thereby  undermined  some 
props,  causing  a  fall  which  killed  him  (Weighill  v.  South  Henton  Coal  Co.,  4 
B.  W.  C.  C.  141),  and  where  a  workman  employed  to  get  flints  on  or  near 
the  surface  of  a  quarry,  though  expressly  forbidden  to  go  into  a  trench  11 
feet  deep,  to  take  shelter  from  a  rain  and  also  to  get  more  flints,  he  being 
paid  by  the  number  of  flints  dug  out,  went  into  the  trench  and  was  smoth- 
ered by  a  fall  of  earth  (Parker  v.  Hambrook,  5  B.  W.  C.  C.  60S). 

25  (P.  L.  1911,  p.  134)  Scott  V.  Payne  Bros.,  Inc.,  85  N.  J.  Law,  446,  89  Atl. 
927. 

2  6  Rayner  v.  Sligh  Furniture  Co.,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p. 
22.  The  infraction  of  this  rule  by  decedent  was  not  such  intentional  and 
willful  misconduct  as  to  bar  recovery,  in  view  of  the  fact  that  it  was  the  gen- 
eral custom  of  decedent's  fellow  employes  and  was  tacitly  permitted  by  re- 
spondent's foreman.    Id. 


§  114  workmen's  compensation  394 

the  employment,  although  there  was  a  special  rule  forbidding  min- 
ers to  return  to  a  train  of  powder  in  less  than  thirty  minutes,  which, 
however,  was  not  properly  posted  or  generally  observed,  where  a 
miner  who  had  lighted  a  train  to  fire  a  shot  returned  in  six  minutes 
to  see  why  there  was  no  explosion,  and,  upon  the  shot  then  explod- 
ing, was  injured.^^  In  an  action  for  death  of  a  miner  from  riding  in 
a  tub  in  a  mine  where  riding  in  tubs  was  forbidden  except  by  per- 
mission, but  was  permitted  by  the  official  in  charge  of  other  parts 
of  the  mine,  and  was  acquiesced  in  by  the  official  in  charge  of  the 
workman's  part  of  the  mine,  it  was  not  proven  that  the  miner  knew 
of  the  rule,  and  the  court  held  that  he  was  killed  in  the  course  of 
his  employment.^^ 

§  114.     Deviation  from  original  employment 

If  the  employe,  though  outside  the  sphere  of  his  original  employ- 
ment, is  obeying  specific  instructions  of  his  employer,  he  is  within 
the  course  of  his  employment.  When  an  injury  arising  from  a  risk 
of  the  business  is  suffered  while  the  employe,  though  not  strictly 
in  the  line  of  his  obligatory  duty,  is  still  doing  something  incidental 
to  his  work,  in  going  to  or  from  the  work  or  in  the  necessary  in- 
tervals of  a  discontinuous  employment,  he  will  ordinarily  be  en- 
titled to  compensation.^^    The  same  right  to  compensation  follows 

27  McNicol  V.  Speirs,  Gibb  &  Co.  (1S99)  1  F.  604,  Ct.  of  Sess.  (Act  of  1S97). 

28  Richardson  v.  Denton  Colliery  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  629,  C.  A. 

2 »  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  116,  96  Atl.  368;  Interna- 
tional Harvester  Co.  v.  Industrial  Commission,  157  Wis.  107,  117  N.  W.  53, 
Ann.  Cas.  1916B,  330. 

Where  a  brickmaker  requires  his  teamster  to  use  his  team  in  carting  for 
a  neighbor,  such  service  may  be  treated  as  an  incident  to  his  general  employ- 
ment. Dale  V.  Saunders  Bros.,  171  App.  Div.  528,  157  N.  Y.  Supp.  1062. 
Where  a  workman  sometimes  used  his  motorcycle  while  on  his  employer's 
business,  and  often  repaired  it  during  business  hours,  the  severing  of  his 
fingers  in  the  chain  guard  was  an  accident  in  the  course  of  his  employment. 
Kingsley  v,  Donovan,  169  App.  Div.  828,  155  N.  Y.  Supp.  801. 

Where  a  reporter  was  ordered  by  his  employer  to  get  a  first  copy  of  the 
newspaper  off  the  press  to  see  if  it  was  correctly  made  up,  and  was  forcibly 


395  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    114 

when  an  injury  arising  from  a  risk  of  the  business  is  suffered  while 
the  employe  is  doing  something  which,  although  entirely  outside 
of  his  obligatory  duty,  is  permitted  by  his  employer  for  their  mutual 

resisted  by  the  pressman,  though  repeatedly  and  properly  attempting  to  carry 
out  his  instructions,  and  then,  as  he  was  about  to  report  the  matter  to  his 
superior,  and  as  a  consequence  of  his  efforts,  was  unexpectedly  and  without 
other   provocation   assaulted.     The   injury  was  sustained   while   performing 
service  in  the  course  of  his  employment.     Brown  v.  Berkeley  Daily  Gazette, 
2  Cal.  I.  A.  C.  Dec.  844.    Where  one  is  hired  as  a  deck  hand,  they  not  being 
allowed  in  the  engine  room,  but  because  of  the  failure  of  the  engineer  to 
report  for  duty  such  deck  hand  is  ordered  by  the  captain  to  go  into  the  en- 
gine room  and  start  the  engine,  the  captain  having  made  reasonable  efforts 
to  obtain  instructions  from  his  employer  before  starting  the  boat  upon  his 
own  responsibility,  and  the  deck  hand  is  injured  by  accident  while  so  en- 
gaged in  accordance  with  the  captain's  orders,  he  is  entitled  to  compensation. 
Graham  v.  Bay  Counties  Express  Co.,  2  Cal.  I.  A,  C.  Dec.  37.    Where  an  em- 
ploye of  a  firm  dealing  in  racing  motorcycles,  in  obedience  to  instructions 
given  him  by  his  employer,  took  a  motorcycle  out  on  a  track  to  test  its  engine 
and  speed,  and,  while  speeding  at  62  miles  an  hour,  crashed  into  a  fence,  the 
resulting  injury  was  in  the  course  of  his  employment.     Lawson  v.  Stockton 
Motorcycle  &  Supply  Co.,  2  Cal.  I.  A.  C.  Dec.  649.    Where  a  trained  miilman 
employed  to  run  an  edging  machine  has  no  other  duties,  and  is  instructed 
never  to  repair  machinery,  but  to  leave  all  repairing  to  the  millwright,  and 
where,  when  the  conveyor  chain  for  removing  sawdust  from  the  pit  under  the 
band  saw  breaks,  and  the  edgerman,  without  specific  instructions,  enters  the 
pit  to  shovel  out  the  sawdust,  this  being  necessary  before  it  can  be  repaired, 
such  edgerman  cannot  be  said  to  have  gone  outside  the  course  of  his  em- 
ployment.    A  trained  miilman  may  reasonably  lend  a  hand  without  instruc- 
tions in  case  of  a  breakdown  in  expediting  repairs  in  other  parts  of  the  mill 
so  long  as  he  does  not  violate  specific  instructions  given  him,  without  stepping 
outside  the  general  course  of  his  duties,  even  though  he  be  employed  only  to 
attend  a  particular  machine.     Winter  v.  Johnson-Pollock  Lumber  Co.,  1  Cal. 
I.  A,  C.  Dec.  387.     Where  a  local  agent  of  a  fruit  company,  handling  ship- 
ments of  growers  on  commission,  accommodated  a  fruit  grower  in  urgent  need 
of  more  help  by  some  fruit  packers  and  taking  them  in  his  autoihobile  to  the 
ranch,  and  while  so  doing  was  injured  in  an  automobile  collision,  and  it  ap- 
pearing that,  although  it  was  not  specific  duty  to  render  this  assistance  to 
the  growers,  yet  it  was  in  the  interest  of  the  employer,  and  it  was  customary 
to  do  everything  possible  to  increase  the  fruit  pack  and  shipment,  and  the 
duties  of  the  agent  required  him  to  go  in  the  automobile  provided  by  the 
employer  throughout  his  field  of  operations  and  to  town,  such  injury  happen- 
ed while  he  was  performing  service  in  the  course  of  his  employment.    Brown 
V.  Pioneer  Fruit  Co.,  2  Cal.  I.  A.  C.  Dec.  827.    Where  a  surveyor,  laying  out  a 


§  114  workmen's  compensation  396 

convenience,  such  as  eating  his  dinner  on  the  premises  or  some 
similar  act  to  the  performance  of  which  the  employer  has  as- 
sented.^" If  a  workman  depart  temporarily  from  his  usual  avoca- 
tion to  perform  some  act  necessary  to  be  done  by  some  one  for  his 
master  he  does  not  cease  to  be  acting  in  the  course  of  his  employ- 
ment.    He  is  then  acting  for  his  master,  not  for  himself.^^    A  rule 

wagon  road  about  a  mile  ahead  of  the  construction  work,  was  requested  by 
the  construction  foreman  to  inspect  an  uncompleted  bridge  for  suggestions, 
and  in  doing  so  was  injured,  the  injury  occurred  in  the  course  of  his  employ- 
ment, although  the  specific  authority  of  the  foreman  to  make  such  a  request 
was  not  proved,  since  such  an  inspection  was  within  the  general  scope  of  the 
duties  of  a  surveyor  in  such  circumstances.  Brackins  v.  Trinity  Asbestos 
Mining  Co.,  3  Cal.  I.  A.  C.  Dec.  22. 

Where  an  employe,  with  a  number  of  other  employes,  was  standing  in  line 
before  a  pay  window  for  the  purpose  of  receiving  his  pay  check,  and  some 
of  the  employes  began  pushing  and  shoving  in  a  friendly  way,  and  applicant 
was  pushed  out  of  line  and  received  a  fall  from  which  he  was  injured,  the 
mere  scuffling  does  not  take  the  employ§  temporarily  out  of  the  employment, 
but  he  is  entitled  to  compensation  for  injuries  sustained  while  on  the  grounds 
of  the  employer,  for  he  was  to  all  intents  and  purposes  in  the  employ  of  the 
employer,  and  the  injury  arose  in  the  course  of  his  employment.  Carls  v. 
Pekiu  Cooperage  Co.,  Bulletin  No.  1,  111.,  p.  75.  Where  an  employer  engaged 
in  the  manufacture  of  leather  goods  would  occasionally  have  one  of  his  em- 
ployes go  to  his  home  to  do  work  about  the  house,  and  the  employe  did  what- 
ever work  was  required  by  the  ladies  in  charge  of  the  household,  which  had 
been  the  practice  for  a  number  of  years,  and  the  city  of  Chicago  required 
some-  improvement  to  be  made  upon  the  alley,  which  the  employe  was  in- 
structed to  do,  he  stepping  on  a  nail  while  so  engaged,  from  which  he  con- 
tracted lockjaw  and  died,  the  fact  that  the  employ^  was  working  at  the  pri- 
vate residence  of  the  employer,  under  the  foregoing  statement  of  facts,  does 
not  affect  the  relation  between  the  employer  and  employe,  and  the  employg 
is  entitled  to  compensation  under  the  Act.  Foreman  Bros.  Banking  Co.  v. 
George  Lanz  &  Co.,  Bulletin  No.  1,  111.,  p.  SI. 

3  0  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn,  llfi,  96  Atl.  368;  Blovell 
V.  Sawyer  (1904)  20  T.  L.  R.  10.5 ;  Norris  v.  Lambeth  Borough  Council  (1905) 
8  W.  C.  C.  3;  Moore  v.  Manchester  Lines,  Limited,  3  B.  W.  C.  C.  527;  Mc- 
Loughlin  v.  Anderson,  4  B.  W.  C.  C.  376;  Emily  Sundine  Case,  218  Mass.  1, 
105  N.  E.  433,  L.  R.  A.  1916A,  318;  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86 
Atl.  458 ;  Northwestern  Insurance  Co.  v.  Industrial  Commission,  160  Wis.  633, 
152  N.  W.  416. 

81  Hartz  V.  Hartford  Faience  Co.  (1916)  90  Conn.  539,  97  Atl.  1020.  That 
a  shipping  clerk  temporarily  departed  from  his  usual  work  to  lift  a  barrel 


^97  CIRCUMSTANCES  UNDER  "WHICH   COMPENSATION   DUE  §    114 

of  law  which  in  such  case  would  put  an  employe  outside  his  usual 
course  of  employment,  and  so  deprive  him  of  his  right  to  com- 
pensation for  an  injury  suffered,  would  punish  energy  and  loyalty 
and  helpfulness  and  promote  sloth  and  inactivity  in  employes.  It 
would  certainly  prove  detrimental  to  industry,  and  such  a  spirit  of 
disregard  of  the  master's  interest,  if  carried  into  all  of  the  work, 
would  in  time  cripple  the  industry.  Besides,  the  rule  would  be 
impractical.  One  trade  must  occasionally  overlap  another,  if  the 
work  is  to  go  on  expeditiously  and  productively.^^  On  the  other 
hand,  when  the  injury,  though  arising  out  of  a  risk  of  the  busi- 
ness, is  received  while  the  employe  has  turned  aside  from  his  em- 
ployment for  his  own  purposes,  and  is  not  acting  within  the  scope 
of  his  employment,  no  compensation  can  be  given. ^^  As  said  by 
Cozens-Hardy,  M.  R. :    "There  is  a  distinction,  and  really  a  very 

did  not  prevent  him  from  being  in  the  course  of  his  employment,  where  in 
lifting  the  barrel  he  was  acting  for  his  master,  not  for  himself.  Id.  In  Grand- 
field  V.  Bradley  Smith  Co.,  1  Conn.  Comp.  Dec.  479,  where  a  girl,  requiring 
an  empty  box  for  her  worlv,  which  should  have  been  supplied  her  by  a  boy 
hired  for  that  purpose,  went  to  get  one  from  another  boy,  who  supplied  an- 
other table,  and  was  resisted  by  him  in  a  spirit  of  fun,  and  injured,  it  was 
held  the  Injury  arose  in  course  of  her  employment. 

Where  an  employ^  was  injured  from  attempting  to  form  an  unexploded 
dynamite  shell  into  a  key,  believing  the  shell  to  have  been  exploded,  and  he 
needed  such  a  key  to  perform  his  duties,  the  injury  was  due  to  accident  in  the 
course  of  his  employment,  though  he  had  no  particular  authority  to  make  the 
key.  State  ex  rel.  Duluth  Brewing  &  Malting  Co.  v.  Dist.  Ct.  (1915)  129  Minn. 
176,  151  N.  W.  912. 

In  attempting  to  turn  on  an  electric  current  to  put  in  motion  a  grindstone 
to  sharpen  a  chisel,  a  carpenter  was  acting  within  the  scope  of  his  employ- 
ment, though  he  had  nothing  to  do  with  the  maintenance  or  operation  of  the 
power-driven  machinery  of  the  shop.  Wendt  v.  Industrial  Ins.  Com.,  80 
Wash.  Ill,  141  Pac.  311,  5  N.  C.  C.  A.  790. 

3  2  Greer  v.  Lindsay  Thompson,  Ltd.,  5  B.  W.  C.  C.  586,  46  Ir.  L.  T.  89; 
Miner  v.  Franklin  Co.  Tel.  Co.,  83  Vt.  311,  75  Atl.  653,  26  L.  R.  A.  (N.  S.)  1195 ; 
Scott  V.  Payne  Bros.,  Inc.,  85  N.  J.  Law,  446,  89  Atl.  927 ;  Hartz  v.  Hartford 
Faience  Co.,  90  Conn.  539,  97  Atl.  1020. 

3  3  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  116,  96  Atl.  368;    Bryce  v. 


§114  workmen's  compensation  398 

simple  one,  between  a  man  who  is  employed  to  do  a  particular 
thing,  and  to  do  it  in  a  particular  way,  who  may  obtain  compensa- 
tion, although  in  the  course  of  doing  that  work  he  nevertheless  em- 
barks on  a  dangerous  mode  contrary  to  the  regulations,  and  a  man 
being  employed  at  A — A  being  limited  to  the  sphere  of  his  opera- 
tions— who  goes  into  B  and  meets  with  an  accident.  In  the  lat- 
ter case  the  employer  is  not  liable;  the  man  has  done  something 
which  he  was  not  authorized  or  employed  to  do.  This  is  a  case  in 
which  he  was  doing  that  which  was  altogether  outside  his  employ- 
ment." 2* 

Edward  Lloyd  Co.,  2  B.  W.  C.  C.  26 ;  Keene  v.  St.  Clements  Press,  Limited,  7 
B.  W.  C.  C.  542;  Spooner  v.  Detroit  Saturday  Night,  187  Mich.  125,  153  N. 
W.  657,  L.  R.  A.  1916A,  17. 

Where  a  mill  foreman  was  injured  from  his  hand  coming  in  contact  with 
a  revolving  fan  when  he  attempted  to  place  in  a  pipe  a  coffee  or  tea  bottle  to 
heat  same,  it  appearing  that  the  place  where  he  attempted  to  heat  the  bottle 
was  not  the  customary  place,  and  was  not  the  place  which,  for  the  purpose 
of  heating  bottles,  had  been  assented  to  by  the  employer,  he  was  not  Injured 
in  the  course  of  his  employment.  (Laws  1913,  c.  13S)  Mann  v.  Glastonbury 
Knitting  Co.,  supra.  In  Stevenson  v.  Union  Metallic  Cartridge  Co.,  1  Conn. 
Comp.  Dec.  621,  where  the  claimant  caught  her  hand  in  a  belt  in  trying  to 
save  herself  from  falling,  while  on  her  way  to  pass  a  petition  relative  to  work- 
ing hours  in  the  factory  to  another  employg,  the  injury  did  not  arise  in  the  course 
of  her  employment.  But  in  Spillane  v.  State  of  Connecticut,  1  Conn.  Comp.  Dec. 
505,  where  an  employe  of  the  state  was  struck  by  an  automobile  while  at- 
tending the  transportation  of  state  property  along  the  highway,  accompanied 
by  another  team  carrying  his  household  goods,  which,  however,  did  not  re- 
quire any  change  in  his  duties  or  actions,  compensation  was  awarded. 

Where  the  workman  had  practically  left  his  employment  to  go  on  a  spree 
and  was  thereafter  injured,  while  in  an  intoxicated  condition,  the  injury  did 
not  arise  in  the  course  of  his  employment.  Minnaugh  v.  Brooklyn  Union  Gas 
Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  8,  p.  10. 

The  employe  received  a  fatal  personal  injury,  following  a  quarrel  with  a 
fellow  employe,  which  was  precipitated  by  the  deceased  without  cause.  The 
employe  struck  another  employe,  the  latter  clinching  with  him,  and  the  de- 
ceased fell  back  against  the  machine,  and  never  regained  consciousness.  It 
was  held  that  the  injury  did  not  arise  in  the  course  of  the  employment.  Mal- 
loy  V.  Fidelity  &  Casualty  Co.  of  N.  Y.,  2  Mass.  Wk.  Comp.  Cases,  401  (deci- 
sion of  Com.  of  Arb.). 

34  McCabe  v.  North  &  Sons,  Ltd.  (1013)  6  B.  W.  C.  C.  50-1,  C.  A.  A  labor- 
er, who  was  hired  to  clean  the  ceiling  of  an  arch,  after  mounting  a  scaffold 


399  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    114: 

If  the  accident  is  due  to  the  man  arrogating  to  himself  duties 
which  he  was  not  called  on  to  perform,  and  which  he  has  no  right 
to  perform,  then  he  was  acting  outside  the  sphere  of  his  employ- 
ment, and  the  injury  by  accident  does  not  arise  in  the  course  of  his 
employment,^^  regardless  of  whether  his  acts  are  in  the  interest  of 
himself,^®  or  a  fellow  workman,^'^  or  a  third  person,^^  or  in  the  in- 

outside  the  arch  with  his  pail  and  brush,  then  fell  from  it,  sustaining  fatal 
injuries,  was  injured  in  the  course  of  his  employment,  although  the  reason 
of  his  going  upon  the  scaffold  was  unexplained.  Roberts  v.  Trollop  &  Sons 
and  Colls  (1914)  7  B.  W.  C.  C.  679,  C.  A. 

3  5  Smith  V.  Fife  Coal  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  253,  H.  L.,  and  (1913) 
6  B.  W.  C.  C.  435,  Ct.  of  Sess. 

Where  a  chauffeur,  waiting  in  a  garage  for  his  master's  machine  to  be  re- 
paired, all  control  and  responsibility  for  the  work  being  out  of  his  hands, 
nevertheless  voluntarily  attempts  to  crank  the  engine,  serving  no  interest  of 
his  employer  in  so  doing,  and,  attaining  no  useful  purpose,  has  his  arm  broken 
in  the  attempt,  his  act  is  gratuitous  and  unnecessary,  and  is  not  a  service 
growing  out  of,  incidental  to,  or  done  within  the  course  of  his  employment 
as  such.    De  Long  v.  Krebs,  1  Cal.  I.  A.  C.  Dec.  592. 

An  employe,  operating  a  truck,  stopped  work  and  pursued  a  rat,  which  ran 
down  an  elevator  shaft,  and  while  looking  down  the  shaft  was  injured  by  the 
descending  elevator.  The  injury  was  not  sustained  in  the  course  of  employ- 
ment. In  re  Martin  Procknau,  vol.  1,  <No.  7,  Bui.  Ohio  Indus.  Com.  p.  66. 
Nor  was  an  injury  sustained  by  an  employ^  while  boxing  with  a  fellow  em- 
ploye.   In  re  John  Zelavzmi,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  87. 

The  employe,  living  on  the  premises,  while  en  route  from  a  store  thereon 
to  his  quarters  and  while  off  duty,  stepped  aside  from  the  usual  path  of  trav- 
el to  watch  the  operations  of  an  electric  wood  saw.  While  standing  there 
a  piece  of  wood  was  thrown  from  the  saw,  striking  and  killing  him.  The 
injury  was  held  not  to  have  been  received  in  the  course  of  employment.  In 
re  Gilson,  Op.  Sol.  Dept.  of  L.  326.  A  shop  boy,  employed  to  work  a  punching 
machine,  injured,  by  voluntarily  starting  a  rolling  machine  while  the  former 
machine  was  idle,  was  not  injured  in  the  course  of  employment.  In  re 
Morales,  Op.  Sol.  Dept.  of  L.  295. 

36  Where  an  employe  whose  duties  as  solicitor  required  his  constant  use  of 
a  motorcycle,  which  was  supplied  by  his  employer,  knowing  his  employer's 
purpose  to  buy  another  motorcycle,  but  without  any  authority  whatever  from 
his  employer,  went  to  a  dealer  to  try  out  a  motorcycle,  and  was  injured  while 
on  one  which  he  had  selected,  the  injury  did  not  occur  while  he  was  perform- 


3  7  See  note  37  on  page  402.  ss  gee  note  38  on  page  402. 


§  114  workmen's  compensation        I  400 

ing  a  service  in  the  course  of  his  employment.  Phillips  v.  Pacific  Gas  & 
Electric  Co.,  2  Cal.  I.  A.  C.  Dec.  7S9. 

The  employe,  whose  occupation  was  that  of  turning  down  laces  in  boxes, 
received  an  injury  while  operating  a  box-lacing  machine,  for  purposes  of  her 
own,  during  the  noon  hour.  She  was  not  entitled  to  compensation,  because 
the  accident  did  not  arise  in  the  course  of  her  employment.  St.  John  v.  Trav- 
elers' Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  376  (decision  of  Com.  of  Arb.). 

A  railroad  conductor  on  an  excursion  train,  run,  with  permission,  by  the 
employes  for  their  own  pleasure,  was  not  injured  in  the  course  of  employ- 
ment.   In  re  Fitzpatrick,  Op.  Sol.  Dept.  of  L.  306. 

Where  a  messenger  boy  at  a  goods  station  crossed  the  lines  at  night  and 
was  killed,  the  accident  was  not  in  the  course  of  his  employment,  and  the 
judge  did  not  believe  the  one  witness  who  said  he  had  been  given  permission 
to  go  by  the  foreman.  McGrath  v.  London  &  Northwestern  Railway  Co.  (1913) 
6  B.  W.  C.  C.  251,  C.  A. 

Workmen  trying  to  earn  additional  compensation  were  not  in  the  course 
of  their  employment,  where  a  collier,  seeking  to  increase  the  quantity  of  coal 
to  his  credit  by  moving  at  intervals  from  his  working  place  and  cutting  coal 
at  places  where  cutting  was  especially  forbidden,  Avas  killed  by  a  fall  of  coal 
in  such  a  place  (Weighill  v.  South  Heaton  Coal  Co.,  Ltd.  [1911]  4  B.  W.  C.  C. 
141,  C.  A.) ;  where  a  quarry  worker,  employed  to  dig  flints  and  paid  by  the 
quantity  dug,  went  into  a  trench  11  feet  deep,  into  which  he  had  been  for- 
bidden to  go,  in  order  to  shelter  himself  from  the  rain  and  get  more  flints, 
and  was  killed  by  a  fall  of  earth  (Parker  v,  Hambrook  [1912]  5  B.  W.  C.  C. 
60S,  C.  A.) ;  and  where  a  carter's  duty  was  to  unload  bags  from  his  own  lorry, 
and  he  was  injured  while  unloading  a  fellow  workman's  lorry,  so  that  his 
fellow  employes  might  help  stow  the  bags  for  the  consignee,  who  paid  them 
for  their  work  (Sinclair,  Ltd.,  v.  Carlton  [1914]  7  B.  W.  C.  C.  937,  Ct.  of  Sess.). 

The  accident  was  not  in  the  course  of  the  employment  where  a  carpenter 
foreman,  working  on  his  brother's  house,  got  into  an  altercation  with  some 
men,  and  his  brother,  taking  charge  of  the  controversy,  was  succeeding,  and 
he  then  began  to  take  part  in  the  fight,  and  was  struck  by  a  piece  of  iron 
thrown  at  him  (Clark  v.  Clark  [Mich.]  155  N.  W,  507) ;  where  a  miner  had 
been  expressly  forbidden  to  go  into  a  place  from  which  the  timbers  had  been 
withdrawn,  and  was  killed  by  a  fall  of  coal  after  going  in  there  to  get  coal 
(Tomlinson  v.  Garratt's,  Ltd.  [1913]  6  B.  W.  C.  C.  4S9,  C.  A.);  where  a  sea- 
man, not  allowed  to  sleep  on  board  his  ship  and  warned  not  to  return  after 
dark,  in  returning  fell  from  a  vertical  ladder  giving  access  to  the  quay,  and 
died  from  the  accident  (Griggs  v.  Owners  of  S.  S.  Gamecock  [1913]  6  B.  W. 
C.  C.  15,  C.  A.) ;  where  a  laborer,  hired  to  pick  up  coal  from  a  roadway  of  a 
mine,  was  killed  trying  to  remove  a  piece  of  coal  projecting  from  the  side  or 
roof  of  the  mine  (Edwards  v.  International  Coal  Co.  [1903]  5  W.  C.  C.  21  [Act 
of  1S97]) ;  where  a  collier,  being  dissatisfied  with  his  pay  note  on  Saturday, 
decided  not  to  go  back  to  work  until  it  was  changed,  and  after  seeing  the 
undermanager,  who  refused  to  grant  his  demand,  on  Monday,  was  knocked 


401  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    114 

down  by  a  wagon  and  killed  when  he  was  leaving  the  premises  (Phillips  v. 
Williams,  [1911]  4  B.  W.  C  C.  143,  C.  A.) ;  where  a  house  surgeon  volunteered 
to  allow  an  X-ray  experiment  on  his  arm,  and  was  injured  by  it  (Curtis 
V.  Talbot  and  Kidderminster  Infirmary  Committee  [1912]  5  B.  W.  C.  C.  41, 
C.  A.) ;  and  where  a  collier,  after  being  suspended,  met  with  an  accident  two 
hours  later  in  a  "pass-by,"  where  he  had  remained,  contrary  to  orders,  in- 
stead of  going  to  the  pit  bottom  (Smith  v.  South  Normanton  Colliery  Co.,  Ltd. 
[190.3]  5  W.  C.  C.  14,  C.  A.  [Act  of  1S97]).  A  fish  porter,  working  at  a  railway 
station  for  a  fish  stevedore,  who  walked  along  the  line  to  reach  a  shunter's 
bothy,  as  fish  porters  frequently  did,  so  that  he  might  know  how  many  fish 
boxes  were  arriving,  was  seeking  useless  information,  and  doing  something 
he  was  not  employed  to  do,  in  a  place  where  he  had  no  right  to  be ;  conse- 
quently he  was  not  injured  in  the  course  of  his  employment.  Hendry  v. 
Caledonian  Ry.  Co.  (1907)  S.  C  732,  Ct.  of  Sess. 

Employes  seeking  their  own  pleasure,  and  held,  to  have  been  killed  or  injur- 
ed while  not  in  the  course  of  their  employment:  A  ticket  collector,  who  was 
killed  while  boarding  an  out-going  train  for  the  purpose  of  speaking  to  a  pas- 
senger. Smith  V.  Lancashire  and  Yorkshire  Railway  Co.  (1899)  1  W.  C.  C. 
1,  C.  A.  (Act  of  1897).  An  engine  driver,  who  was  run  over  and  fatally  in- 
jured on  his  way  back  from  borrowing  a  book,  unconnected  with  his  employ- 
ment, from  the  fireman  of  another  engine  across  the  track.  Reed  v.  Great 
Western  Co.  (1910)  2  B.  W.  C.  C.  109,  H.  L.  A  carter,  who,  after  delivering 
a  load  of  sand,  started  home  by  a  longer  route  in  order  to  stop  at  a  public 
house  for  a  single  glass  of  beer,  and  while  going  down  the  slope  from  the  inn 
his  horse  ran  away  and  he  was  killed.  Everitt  v.  Eastafp  &  Co.  (1913)  6  B. 
W.  C.  C.  184,  C.  A.  A  commercial  traveler,  who  went  in  a  dog  cart  with 
a  friend  to  a  place  not  connected  with  his  business,  got  drunk,  and  was  in- 
jured. Renfrew  v.  McGraw,  Ltd.  (1914)  7  B.  W.  C.  C.  898.  A  canvasser,  for 
whose  work  a  bicycle  was  not  necessary,  and  whose  employers  would  have 
forbidden  its  use,  had  they  known  of  it,  who  was  killed  by  a  fall  from  the 
bicycle  just  after  calling  at  his  home  for  a  bicycle  lamp,  which  was  not  used 
in  his  business  work.     Butt  v.  Provident  Clothing  Supply  Co.,  Ltd.   (1913)  6 

B.  W.  C.  C.  18,  C.  A.  Where,  during  an  interval  of  rest,  some  boys  employed 
in  a  steel  works  had  been  repeatedly  warned  to  let  wagons  alone,  and  the 
wagons  moved,  fatally  injuring  one  of  them,  the  accident  was  not  in  the 
course  of  his  employment.  Powell  v.  Lanarkshire  Steel  Co.  (1904)  6  F.  1039, 
Ct.  of  Sess. 

Injury  at  play  was  not  in  the  course  of  employment,  where  a  boy  in  charge 
of  the  handle  of  a  machine,  although  forbidden  to  touch  a  pinion  wheel,  took 
off  its  cover  and  played  with  it,  and  was  injured.  (Furniss  v.  Gartside  &  Co., 
Ltd.  [1910]  3  B.  W.  C.  C.  411,  C.  A.,  and  where  a  boy,  cleaning  a  machine  at 
rest,  began  larking  with  another  lad,  and  accidentally  started  the  machinery, 
injuring  himself  (Cole  v.  Evans,  Son,  Lescher  &  Webb,  Ltd.  (1911)  4  B.  W. 

C.  C.  138,  C.  A.  * 

HoN.CoMP.— 26 


§114  workmen's  compensation  402 

3  7  Where  a  workman,  who  was  employed  to  operate  an  engine  and  dj-namo 
in  the  basement  of  a  building,  went  to  an  upper  floor,  where  he  volunteered 
as  a  special  favor  to  other  workmen  to  take  them  in  the  elevator  to  a  floor 
above,  and  was  killed  in  so  doing,  his  death  did  not  result  from  injuries  aris- 
ing in  the  course  of  his  employment.  Spooner  v.  Detroit  Saturday  Night 
Co.,  187  Mich.  125,  153  N.  W.  657,  L.  R.  A.  1916A,  17. 

An  employ§,  who  left  the  premises  of  his  employer  for  the  purpose  of  post- 
ing a  letter  for  a  fellow  employe,  and  while  crossing  a  railroad  on  the  way 
was  injured  by  a  moving  train,  was  not  injured  while  in  the  course  of  his  em- 
ployment.   In  re  Otho  Deavers,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  G2. 

A  workman,  injured  in  going  to  assistance  of  a  fellow  workman,  attacked 
by  a  third,  was  not  injured  in  the  course  of  employment  (In  re  Armistead, 
Op.  Sol.  Dept.  of  L.  305) ;  nor  was  a  laborer  or  fire  patrolman  in  the  Forest 
Service,  who  attempted  to  clean  a  pistol  belonging  to  a  fellow  employ§  while 
in  living  quarters  furnished  by  the  government  (In  re  Brown,  Op.  Sol.  Dept. 
of  L.  328).  The  injury  was  not  in  the  course  of  employment  where  a  man, 
whose  duties  were  concerned  with  the  operation  of  an  engine  and  dynamo 
on  the  bottom  floor,  was  loitering  on  one  of  the  upper  floors,  and  voluntarily 
offered  to  take  some  fellow  workman  in  the  elevator  to  the  floor  above,  and 
was  killed  in  the  attempt  (Spooner  v.  Detroit  Saturday  Night  Co.,  187  Mich. 
125,  153  N.  W.  657,  L.  R.  A.  1916A,  17) ;  where  a  road  mender  broke  up  the  fire 
in  a  steam  roller,  so  that  the  engineman  need  not  come  to  work  so  early,  and 
injured  his  leg  when  he  stepped  off  the  roller  (McAllan  v.  Perthshire  County 
Council  [1906]  8  F.  783,  Ct.  of  Sess.  [Act  of  1897]) ;  and  where  a  stoker  was 
paid  the  wages  of  another  man  by  mistake,  and,  on  going  to  the  other  man's 
engine  to  pay  him  the  money,  attempted  to  board  the  other  man's  engine  while 
it  was  in  motion,  fell,  and  was  injured  (Williams  v.  Wigan  Coal  &  Iron  Co., 
Ltd.  [1910]  3  B.  W^  C.  C.  65,  C.  A.). 

3  8  vrhere  the  driver  had  taken  the  employer's  automobile  to  a  garage  as 
directed,  and  without  any  necessity  or  advantage,  or  being  requested  to  do  so, 
undertook  to  crank  the  machine  merely  to  render  a  friendly  service  to  the 
mechanician,  to  whose  charge  the  machine  had  been  committed  for  the  pur- 
pose of  making  the  necessary  repairs,  such  as  burning  out  the  cylinders  and 
grinding  the  valves,  the  accident  did  not  occur  in  the  course  of  the  employ- 
ment. De  Long  v.  Krebs,  2  Cal.  I.  A.  C.  Dec.  376.  Where  a  garage  employ^, 
having  a  holiday  on  the  day  of  the  automobile  races  at  the  exposition,  with- 
out objection  by  his  employer  and  for  his  own  pleasure,  took  out  the  service 
car  he  was  accustomed  to  di-ive  and  went  to  the  races  to  assist  a  racer,  De 
Palma,  who  had  been  keeping  his  racing  car  at  the  garage,  sustaining  a  fatal 
injury  while  returning  to  the  garage  to  get  some  of  the  supplies  for  De  Palma, 
the  accident  did  not  occur  while  performing  service  in  the  course  of  his  em- 
ployment.   Held  V.  Lee,  2  Cal.  I.  A.  C  Dec.  728. 

An  employe,  after  delivering  a  package  of  hardware  for  his  employer  and 
while  returning  to  his  place  of  employment,  stopped  to  assist  a  horse,  which 


403  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION  DUE  §    114 

terest  of  his  employer,^^  or  of  the  state. *°     But  such  arrogation  of 
duty  must  be  the  cause  of  the  accident  in  order  to  take  it  out  of 

had  been  overcome  by  beat,  and,  while  doing  so,  it  fell  upon  him  and  broke 
his  leg.  The  injury  was  held  not  to  have  been  sustained  in  the  course  of  em- 
ployment. In  re  Henry  Verkamp,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  123. 
An  employe,  on  the  premises  during  the  noon  hour,  stopped  to  pick  up  a 
baseball  from  the  street  to  return  it  to  players  in  the  field,  when  he  was 
struck  by  an  automobile.  He  was  not  injured  in  the  course  of  employment. 
In  re  Schlechter,  Op.  Sol.  Dept.  of  L.  331. 

3  0  Bischoff  V.  American  Car  &  Foundry  Co.  (Mich.)  157  N.  W.  34. 

These  acts  may  be  cleaning  machinery,  as  where  a  boy  who  was  hired  to 
mold  balls  of  clay  and  hand  them  to  a  woman  working  at  a  machine  near 
him,  and  who  was  expressly  forbidden  to  touch  the  machinery,  attempted 
to  clean  the  machine  while  the  woman  was  absent,  and  was  injured  (Lowe  v. 
Pearson  [1S99]  1  W.  C.  C.  5,  C.  A.  [Act  of  1S97]) ;  where  a  boy  was  hired  to 
piece  ends  of  broken  yarn,  and  tried  to  clean  machinery  in  motion,  which  was 
not  his  duty,  and  which  he  had  been  forbidden  to  do  (Naj-lor  v.  Musgrave 
Spinning  Co.,  Ltd.  [1911]  4  B.  W.  C.  C.  286,  C.  A.) ;  where  a  liftman  had  been 
forbidden  to  oil  or  clean  his  lift,  and  was  killed  while  so  doing  (Dougal  v. 
Westbrook  [1913]  6  B.  W.  C.  C.  705,  C.  A.) ;  where  a  time  to  clean  machinery 
in  a  factory  was  set,  and  the  wheels  were  stopped  during  the  time  for  that 
purpose,  and  a  workman  tried  to  clean  a  mangle  at  another  time,  while  it  was 
in  motion,  against  strict  prohibitions  (McDiarmid  v.  Ogilvy  Bros.  [1913]  6  B. 
W.  0.  C.  878,  Ct.  of  Sess.) ;  and  where  a  hospital  porter  was  injured  while 
trying  to  dust  the  top  of  a  lift,  in  which  he  was  being  taken  up  to  the  top 
fioor  to  do  some  cleaning,  and  although  he  had  never  been  told  to  dust  the  lift, 
he  had  greased  it,  but  always  under  the  supervision  of  the  head  porter 
(Whiteman  v.  Clifden  et  al.  [1913]  6  B.  W.  O.  C.  49,  C.  A.). 

They  may  be  starting  an  engine,  as  where  in  a  steam  bakery,  where  it  was 
necessary  that  an  engine  be  started  to  mix  the  dough,  a  baker,  who  had  fre- 
quently started  it,  although  it  was  not  his  duty  and  he  had  been  told  not  to 
do  so,  was  fatally  injured  when  he  attempted  to  start  it  (Marriott  v.  Brest 
&  Beney,  Ltd.  [1912]  5  B.  W.  C.  C.  145,  C.  A.),  and  where  a  girl's  only  duty 
was  to  pick  dirt  out  of  coal  passing  along  a  band  driven  by  an  engine,  and  she, 
against  the  warning  of  other  girls,  although  they  frequently  did  this,  started 
the  engine  while  the  engine  man  was  temporarily  absent,  and  was  injured 
(Losh  V.  Evans  &  Co.,  Ltd.  [1912]  5  B.  W,  C.  C.  17,  C.  A.) ;    or  seeking  instruc- 


4  0  Where  a  lumber  company's  employe  was  injured  while  assisting  a  fire 
warden  as  required  by  statute,  his  injury  did  not  arise  in  the  course  of  his 
employment,  though  he  was  paid  his  regular  wages  by  his  employer,  who  was 
reimbursed  by  the  state  and  county.  Kennelly  v.  Stearns  Salt  &  Lumber  Co. 
(Mich.)  157  N.  W.  378. 


§114  workmen's  compensation  404 

the  course  of  the  employment.*^  That  it  is  not  essential  for  the 
workman  to  be  doing  the  particular  work  which  he  was  employed 
to  perform*^  is  illustrated  in  many  English  decisions.     When  a 

tions,  e.  g.,  where  a  contractor's  carter,  whose  duty  it  was  to  stay  with  his 
horse  and  cart,  was  sent  to  a  railway  station  to  fetch  mortar,  but  finding  that 
a  foreman's  permission  was  necessary  before  he  could  remove  it,  he  left  his 
horse  and  cart  and  went  down  the  line  to  seek  a  foreman,  and  was  killed  (Mor- 
ris V.  Rowbotham  [1915]  8  B.  W.  C.  C.  157,  C.  A.) ;  or  other  miscellaneous 
acts,  such  as  where  a  cleaner  in  a  factory,  who  was  not  allowed  to  use  the 
machinery,  needed  a  handle  for  his  scraper  and  was  injured  while  trying 
to  make  one  on  a  circular  saw  (Slulholland  v.  Hazelton  &  Co.  [1902]  36  Ir. 
L.  T.  217,  C.  A.);  where  a  boy  was  injured  seriously  when  he  tried  to  help 
a  fellow  workman  remove  a  piece  of  soap,  which  had  jammed  a  soap  com- 
pressing machine,  he  having  no  right  whatever  to  touch  the  machine  (Davies 
V.  Crown  Perfumery  Co.  [1913]  6  B.  W.  C.  C.  649,  C.  A.);  where  a  work- 
woman injured  her  hand  on  a  machine  20  yards  away  from  the  particular  one 
on  which  she  was  engaged,  and  difi'erent  from  hers,  and  died  of  blood  poison- 
ing (Cronin  v.  Silver  [1911]  4  B.  W.  C.  C.  221,  C.  A.) ;  where  an  attendant  in 
a  power  house  had  been  expressly  forbidden  to  dust  the  switchboard,  and  it 
w-as  not  his  duty  to  do  so,  but  he  did  and  was  injured  (Jenkinson  v.  Harrison, 
Ainslie  &  Co.,  Ltd.  [1911]  4  B.  W.  C.  C.  194,  C.  A.) ;  where  a  mine  worker, 
instead  of  sending  wood  by  the  accustomed  way,  tried  to  use  haulage  machin- 
ery, which  he  had  been  forbidden  to  use  and  did  not  understand,  and  the 
breaking  of  a  chain  resulted  in  his  death  (Burns  v.  Summerlee  Iron  Co.,  Ltd. 
[1913]  6  B.  W.  C.  C.  320,  C.  A.) ;  where  a  miner  was  hired  to  prepare  shots 
for  blasting,  and  firing  them  was  a  duty  he  was  neither  engaged  nor  entitled 
to  do,  and  he  attempted  to  fire  a  shot  during  the  absence  of  the  shot-firer 
(Kerr  v.  Baird  &  Co.,  Ltd.  [1911]  4  B.  W.  C.  C.  397,  Ct.  of  Sess.) ;  and  where 
a  boy,  who  had  been  instructed  to  inform  the  foreman  when  anything  went 
wrong,  tried  to  correct  matters  himself  and  was  injured  (McCabe  v.  Noth  & 
Sons,  Ltd.  [1913]  6  B.  W.  C  C.  504,  C.  A.). 

41 A  miner  was  permitted  by  the  shot-firer,  contrary  to  regulations,  to 
connect  the  detonator  to  the  cable,  and  the  shot-firer  by  mistake  fired  the 
shot  before  the  miner  had  reached  a  place  of  safety.  The  severe  injury 
which  he  received  was  in  the  coui^se  of  his  employment,  since  the  act  of  the 
shot-firer  was  the  cause  of  the  accident.  Smith  v.  Fife  Coal  Co.,  Ltd.  (1914) 
7  B.  W.  C.  C.  253,  H.  L.,  and  (1913)  6  B.  W.  C.  C.  435,  Ct.  of  Sess. 

4  2  The  Act  does  not  say,  "when  doing  the  work  he  was  employed  to  per- 
form," and  it  is  a  fair  inference  that,  if  it  had  been  intended  to  limit  the 
right  to  compensation  to  accidents  occurring  while  the  workman  was  doing 
the  work  which  he  was  employed  to  do,  different  language  would  have  been 


405  CmCUMSTAXCES  UNDER  WHICH   COMPENSATION   DUE  §    114 

piece  of  tin  got  jammed  in  her  machine,  a  factory  girl  reported  the 
fact  to  the  engineer,  and  was  told  to  see  to  it  herself.  A  fellow 
worker  started  the  machine  while  she  was  fixing  it,  and  it  was  held 
the  injury  was  in  the  course  of  employment.*^  There  was  a  like 
holding  where  a  "barrowman"  unloading  a  ship  exchanged  jobs 
with  a  "tipper"  who  was  working  for  a  different  employer,  and  the 
employer  knew  that  such  an  exchange  of  work  took  place  and  did 
not  forbid  it,**  where  a  boy  was  told  by  a  fellow  workman  that  a 
foreman  whom  it  was  his  duty  to  obey  had  said  he  was  to  oil  a 
certain  machine,  and  he  was  injured  while  so  doing,*^  and  where 
the  captain  of  a  steam  trawler  crossed  a  space'  in  which  he  knew 
German  mines  had  been  scattered,  and  changed  his  course  to  warn 
warships  several  miles  away  of  the  presence  of  the  mines,  and  his 
boat  struck  a  mine,  resulting  in  serious  injury  to  the  chief  engi- 
neer.*® 

No  break  in  the  employment  is  caused  by  the  furnishing  of  as- 
sistance to  a  fellow  workman  in  an  emergency  or  to  rescue  him 
from    danger,*^    by    a    deviation    from    the    original    employment 

used  from  that  which  occurs  in  the  Act.  Menzies  v.  McQuibban  (ISOO)  2  F. 
732,  Ct.  of  Sess.  (Act  of  1897). 

43  Geary  v.  Ginzler  &  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  72,  C.  A, 

44  Henneberry  v.  Doyle  (1912)  5  B.  W.  C.  C.  5S0,  C.  A. 

45  Brown  v.  Scott  (1S99)  1  W.  C.  C,  11,  G.  A.  (Act  of  1S97). 

4  6  Risdale  V.  Owners  of  S.  S.  Kilmarnock  (1915)  8  B.  W.  C.  C.  7  C.  A. 

4  7  Instances  of  accidents  in  an  emergency :  Where  the  deceased  workman 
left  his  own  work  of  boiling  syrup  to  heliD  a  fellow  workman,  who  was  having 
trouble  with  an  elevator  commonly  used  by  all  the  employes,  and  was  fatally 
injured  by  the  fall  of  the  elevator  upon  the  releasing  of  the  cable,  which  had 
been  caught.  Martucci  v.  Hills  Bros.  Co.,  171  App.  Div.  370,  156  N.  T.  Supp. 
833.  Where  a  weighing  clerk  was  fatally  injured  while  helping  some  work- 
men to  carry  a  heavy  frame  to  the  weighing  machine,  although  it  was  not 
part  of  his  duty  to  do  so.  Goslan  v.  Gillies  &  Co.,  [1907]  S.  C.  68,  Ct.  of 
Sess.  Where  a  laborer  who  had  no  duty  connected  with  machinery  was 
fatally  injured  while  trying  to  help  a  machineman  replace  a  driving  belt 
which  had  come  off.  Menzies  v.  McQuibban,  [1900]  2  F.  732,  Ct.  of  Sess. 
(Act  of  1897). 

Acts  of  rescue  have  been  held  within  the  course  of  the  employment  where 


§  114  workmen's  compensation  406 

through  mistake,*®  or  through  an  attempt  to  protect  the  employ- 
er's interests  in  an  unexpected  contingency,*^  or  to  save  himself 

a  workman  fell  into  a  hole  in  the  floor  which  could  not  be  seen  for  escaping 
steam,  while  he  was  running  to  answer  a  call  for  help  from  a  coemploye 
who  had  fallen  into  the  hole  (Dragovich  v.  Iroquois  Iron  Co.,  269  111.  478, 
109  N.  E.  999) ;  where  an  employe  of  a  contracting  company  was  fatally  in- 
jured while  attempting  to  rescue  from  a  cave-in  a  fellow  laborer  working  only 
a  few  feet  away  on  the  same  general  undertaking,  although  for  a  different 
employer  (Waters  v.  William  J.  Taylor  Co.,  21S  N.  Y.  248,  112  N.  E.  727,  af- 
firming 170  App.  Div,  942,  154  N.  Y.  Supp.  1149) ;  where  a  workman  sustained 
a  nervous  shock,  which  produced  neurasthenia  and  incapacity,  while  assist- 
ing to  remove  an  injured  fellow  workman  (Yates  v.  South  Kirby,  Feather- 
stone  and  Hemworth  Collieries,  Ltd.  [1910]  3  B,  W.  C.  C.  418,  C.  A.) ;  where 
a  workman,  hired  to  work  on  a  quay,  went  into  the  hold  of  a  ship  to  rescue 
a  fellow  workman  overcome  by  noxious  gases,  and  was  himself  suffocated 
(London  &  Edinburgh  Shipping  Co.  v.  Brown,  [1905]  7  F.  4SS,  Ct.  of  Sess. 
[Act  of  1897]) ;  and  where  an  ambulance  man  in  a  factory  had  an  apoplectic 
seizure  and  died  while  he  was  excitedly  hurrying  to  summon  medical  aid  for 
a  workman  who  was  doing  work  for  his  (the  ambulance  man's)  employer  and 
on  their  premises,  although  not  in  their  service  (Aitken  v.  Finlayson,  Bous- 
field  &  Co.,  Ltd.  [1914]  7  B.  W.  C.  C.  918,  Ct.  of  Sess.). 

4  8  The  accident  was  in  the  course  of  the  employment  where  a  miner,  de- 
scending into  the  pit  by  the  cage,  got  out  at  a  higher  level  than  he  intended, 
and  while  going  on  foot  in  the  wrong  direction  was  scalded  to  death  by  ex- 
haust steam  from  a  pumping  engine  (Sneddon  v.  Greenfield  Coal  and  Brick 
Co.  [1911]  3  B.  W.  C.  C.  557,  Ct.  of  Sess.) ;  where  a  workman  was  required  to 
go  to  a  certain  place  to  draw  his  wages,  and  was  paid  for  the  time  taken 
to  go  and  come,  and  on  his  return  journey  mounted  a  wrong  tram  car,  and 
was  struck  by  a  passing  car  when  getting  off  (Nelson  v.  Belfast  Corporation 
[1909]  1  B.  W.  C.  C.  158,  C.  A.) ;  and  where  a  boy  employed  to  grease  truck 
wheels,  thinking  that  the  points  were  against  an  approaching  train  of  trucks, 
was  injured  while  trying  to  open  them  (Harrison  v.  Whitaker  Bros.,  Ltd. 
[1900]  2  W.  C.  C.  12,  C.  A.  [Act  of  1897]). 

4  9  The  existence  of  a  real  emergency  operates  to  extend  the  scope  of  an 
agent's  authority,  giving  him  power  to  employ  assistance  where  assistance 
is  needed,  and  the  acts  done  in  consequence  of  such  emergency  are  done  with 
the  bona  fide  intention  of  protecting  and  guarding  the  interests  of  the  employ- 
er.   Paul  V.  Nikkei,  1  Cal.  I.  A.  C.  Dec.  648. 

Such  accidents  occurred  where  a  workman  hired  as  a  member  of  a  fire 
brigade  to  help  protect  his  employer's  property  was  wet  to  the  skin  with 
water,  and  inhaled  smoke,  while  fighting  a  fire  within  40  feet  of  his  employ- 
er's premises,  and  died  of  lobar  pneumonia  (In  re  McPhee,  222  Mass.  1,  109 


407  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    Hi 

or  his  personal  effects  from  danger.^"  An  injury  is  not  placed  out- 
side the  course  of  the  employment  by  the  fact  that  it  results  from 

N.  E.  633) ;  where  one  whose  duty  it  was  to  protect  the  load  on  a  grocery 
truck,  on  which  he  was  riding,  from  mischievous  boys,  was  killed  when  he 
jumped  off  the  truck  to  drive  away  boys  whom  he  had  ordered  from  the  rear 
of  the  vehicle,  even  though  he  may  have  been  impetuous  and  imprudent  (Hen- 
dricks V.  Seeman  Bros.,  170  App.  Div.  133,  155  N.  Y.  Supp.  63S) ;  where  a  car- 
ter was  killed  while  trying  to  stop  his  horse,  which  had  bolted  (Deviue  v. 
Caledonian  Ry.  Co,  [1889J  1  F.  1105  [Act  of  1897]);  where  a  miner,  whose 
work  was  totally  unconnected  with  horses,  was  killed  while  he  was  attempt- 
ing to  stop  his  employer's  horse  in  a  runaway  (Rees  v.  Thomas  [1899]  1  W.  C. 
C.  9,  C.  A.) ;  where  a  workman,  left  in  charge  of  cages  of  lions,  was  killed 
while  trying  to  drive  back  one  which  had  escaped,  there  being  no  evidence  to 
show  how  (Hapelman  v.  Poole  [1910]  2  B.  W.  C.  C.  48) ;  and  where  a  drawer 
in  a  mine  wheeled  a  loaded  hutch  to  a  lye,  which  he  found  already  loaded 
full,  and  proceeded  to  "let  down"  the  loaded  hutches  in  order  to  make  room 
for  his  and  get  out  an  empty  one,  following  a  general  practice  in  so  doing  and 
avoiding  considerable  delay  (Baird  »Sc  Co.,  Ltd.,  v.  Robson  [1914]  7  B.  W.  C.  C. 
925,  Ct.  of  Sess.).  It  was  held  likewise,  in  a  case  where  a  foreman  in  charge 
of  a  squad  of  miners,  after  preparing  a  charge  for  blasting,  told  a  fireman, 
seemingly  for  a  joke,  that  there  was  no  shot  ready  for  him.  Later,  not  being 
able  to  find  the  fireman,  the  foreman  tried  to  take  out  the  wires  and  thus 
make  the  detonator  harmless,  and  was  killed  while  so  doing,  and  it  was  held 
that  the  accident  was  in  the  course  (and  out)  of  the  employment.  Queen 
V.  Baird  &  Co.,  Ltd.  (1904)  6  F.  271,  Ct.  of  Sess. 

Where  a  clerk  of  the  accounting  department  of  the  defendant  railway,  trav- 
eling on  one  of  its  trains  in  the  course  of  his  employment,  upon  the  stopping 
of  the  train  after  it  ran  over  and  injured  a  man,  alighted  to  be  available  in 
case  his  services  were  needed,  and  it  appears  that,  although  not  requested  to 
do  so,  nor  strictly  within  his  duties,  he  actually  did  render  assistance,  and 
where  in  some  manner  such  employe,  while  attempting  to  get  aboard  too  late, 
slipped  under  the  wheels  and  was  killed,  he  was  killed  while  performing 
service  in  the  course  of  employment,  and  the  act  of  alighting  was  within  his 
implied  duties.  Bowdish  v.  Northwestern  Pacific  R.  R.  Co.,  2  Cal.  I.  A.  C. 
Dec.  777. 

5  0  Where  a  cook  on  a  lighter  overexerted  himself  while  removing  his  ef- 
fects from  the  sinking  ship,  and  died  soon  after  of  heart  disease  hastened  bji 
such  overexertion,  the  accident  was  one  arising  in  the  course  of  his  em- 
ployment, since  any  act  which  would  have  been  reasonable  for  any  one  to  do, 
when  leaving  a  sinking  ship  which  was  his  temporary  home,  was  within  the 
scope  of  his  employment.  In  re  Brightman,  220  Mass.  17,  107  N.  E.  527,  L. 
R.  A.  1916A,  321. 

Where  an  employ^,  in  order  to  save  being  hurt  when  the  crane  which  he 


§  115  workmen's  compensation  408 

the  act  of  an  employe  of  an  independent  contractor."  That  one 
employed  to  trim  trees  through  which  ran  the  wires  of  his  em- 
ployer, an  electric  company,  was  at  the  time  of  his  injury  trimming 
a  tree  through  which  the  wires  did  not  run,  did  not  put  him  out- 
side the  "usual  course  of  the  trade,  business,  profession,  or  occu- 
pation" of  the  company,  where  he  was  acting  under  the  orders  of 
the  company's  superintendent.^^ 


Division  III. — Arising  Out  of  Employment 

§  115.     Risks  due  to  employment 

The  use  of  the  words  "arising  out  of,"  or  words  of  similar  im- 
port, makes  it  a  condition  precedent  to  the  right  to  recover  com- 
pensation that  the  occurrence  shall  have  resulted  from  a  risk  rea- 
sonably incident  to  the  employment ;  ^^  that  there  be  a  causal  con- 
nection between  the  conditions  under  which  the  employe  worked 
and  the  resulting  injury.^*     While  the  occurrence  need  not  have 

was  operating  broke,  jumped  into  a  river,  and  pleurisy  and  tuberculosis  re- 
sulted from  tbe  wetting  received,  tbe  accident  occurred  in  the  course  of  bis 
employment.  Rist  v.  Larkin  &  Sangster,  171  App.  Div.  71,  156  N.  Y.  Supp. 
875. 

51  Where  a  bar  of  metal  fell  from  the  upper  story  of  a  building  under  con- 
struction, and  killed  a  carpenter,  it  was  in  tbe  course  of  bis  employment,  even 
though  a  workman  of  an  independent  contractor  was  responsible  for  its  fall. 
Bryant  v.  Fissel,  84  N.  J.  Law,  72,  86  Atl.  458. 

52  In  re  Howard,  218  Mass.  404,  105  N.  E.  636, 

5  3Coronado  Beach  Co.  v.  Pillsbury  (Cal.)  158  Pac.  212;  Fitzgerald  v. 
Clarke  &  Son,  [1908]  2  K.  B.  796,  77  L.  J.  K.  B.  1018. 

54McNicol's  Case,  215  Mass.  497,  102  N.  E.  697,  L.  R.  A.  1916A,  306;  Coro- 
nado  Beach  Co.  v.  Pillsbury  (Cal.)  158  Pac.  212. 

The  nature  and  conditions  of  the  employment  must  be  such  that  the  in- 
jury was  one  likely  to  happen  to  one  in  that  employment.  There  must  be 
a  causal  connection  between  the  employment  and  the  injury.  (Laws  1911, 
c.  751,  as  amended  by  Laws  1912,  c.  571)  McNicol's  Case,  supra. 


409  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUE  §    11& 

been  foreseen  or  anticipated,^^  it  must  appear  after  the  event  to  have 
had  its  origin  in  a  risk  connected  with  the  employment,  and  to  have 
flowed  from  that  source  as  a  rational  consequence.^^    This  statutory 

55  state  ex  rel.  People's  Coal  &  Ice  Co.  v.  District  Court,  129  Minn.  502,  153 
N.  W.  119,  L.  R.  A.  1916A,  344. 

5  6  McNicol's  Case,  215  Mass.  497,  499,  102  N.  E.  697,  L.  R.  A.  1916A,  306 ; 
Coronado  Beach  Co.  v.  Pillsbury  (Cal.)  158  Pac.  212;  Federal  Rubber  Mfg. 
Co.  V.  Havolic  (Wis.)  156  N.  W.  143. 

"To  satisfy  the  words  of  the  Act,  the  occurrence  must  be  one  in  which 
there  is  personal  injury  by  something  arising  in  a  manner  unexpected  and 
unforeseen  from  a  risk  reasonably  incidental  to  the  employment.  Nothing 
can  come  "out  of  the  employment"  which  has  not,  in  some  reasonable  sense, 
its  origin,  its  source,  its  causa  causans,  in  the  employment.  That  the  injury 
must  be  one  resulting  in  some  reasonable  sense  from  a  risk  incidental  to  the 
employment  has,  I  think,  been  decided  over  and  over  again."  Cozens-Hardy, 
in  Mitchinson  v.  Day  Bros.  (1913)  6  B.  W.  C.  C.  191,  C.  A. 

Where  an  employe  worked  continuously  for  21  hours,  except  IVo  hours  off 
for  meals,  during  which  time  he  had  to  climb  216  steps  three  different  times 
besides  being  on  his  feet  most  of  the  time,  and  was  found  dead  in  his  chair 
in  a  saloon  a  half  hour  after  quitting,  death  being  due  to  angina  pectoris,  the 
accident  arose  out  of  his  employment  and  the  overexertion  it  necessitated. 
McMurray  v.  J.  J.  Little  &  Ives  Co.,  3  N.  Y.  St.  Dep.  Rep.  395. 

Where  a  night  watchman  on  his  last  round  fell  to  the  floor  from  an  apo- 
plectic shock,  without  any  accident  occurring,  the  injury  was  not  one  arising 
out  of  the  employment.  Ledoux  v.  Employers'  Liability  Assur.  Corp.,  Ltd., 
2  Mass.  Wk.  Comp.  Cases,  493  (decision  of  Com.  of  Arb.).  Nor  could  it  be  held 
to  have  so  arisen  where  the  evidence  showed  that  the  condition  of  valvular 
heart  trouble  from  which  the  employe  suffered  was  not  caused  by  an  accumu- 
lation of  strains  in  carrying  and  lifting  materials,  as  claimed  (Nolan  v.  New 
England  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  417  [decision  of  Com.  of 
Arb.]) ;  or  where  a  bartender  knocked  down  a  customer  under  provocation  of 
verbal  abuse,  using  excessive  force,  and  in  so  doing  broke  a  bone  in  his  own 
hand  (Bisotti  v.  Behlow  Estate  Co.,  2  Cal.  I.  A.  C.  Dec.  986) ;  or  where  a  fore- 
man in  the  employ  of  defendant  owned  a  horse  which  he  kept  with  him  while 
at  work,  occasionally  using  it  in  the  company's  business,  but  was  not  required 
to  furnish  or  use  a  horse,  and  the  horse  was  fed  and  shod  at  the  company's 
expense,  and  where,  the  foreman  forgetting  to  bring  it  across  a  certain 
creek  to  the  camp  during  working  hours,  an  employe  of  the  company  volun- 
teered in  the  evening  to  bring  it  over,  and  was  accidentally  drowned  while 
carrying  out  this  errand  (Wood  v.  Chico  Construction  Co.,  1  Cal.  I.  A.  C. 
Dec.  89).  (Commissioner  Pillsbury  dissented,  on  the  ground  that  the  owner- 
ship of  the  horse  was  immaterial,  so  long  as  it  was  being  used  in  the  com- 


§  115  workmen's  compensation  410 

requirement  should  not  be  narrowly  construed,  however.  An  em- 
ploye must  reasonably  be  allowed  some  latitude  for  the  exercise 
of  his  own  judgment  as  to  when  and  how  he  can  best  serve  the 
interests  of  his  employer.'^  Where  these  requisite  conditions  ex- 
ist, and  the  injury  results  from  a  special  risk  incident  to  the  em- 
ployment, and  there  is  a  causal  connection  between  the  conditions 
under  which  the  work  is  required  to  be  performed,  the  injury  "aris- 
es out  of"  the  employment,^^  even  when  the  connection  is  somewhat 

pany's  business ;  that  the  errand  was  desired  by  the  foreman,  and  the  em- 
ploy6  not  in  a  position  to  question  him  as  to  whether  it  was  within  the  line 
of  his  duties  or  not;  and  that  it  is  also  Immaterial  whether  deceased  volun- 
teered to  perform  the  errand  or  was  instructed  to  do  so,  as  in  either  case  he 
was  complying  with  an  expressed  wish  of  his  foreman.)  Where  an  employe 
received  a  slight  injury,  to  which  bandages  soaked  in  turpentine  were  ap- 
plied, and  some  days  later  accidentally  set  fire  to  the  bandages  while  lighting 
his  pipe,  the  burns  received  in  the  second  accident  are  not  caused  by  an  acci- 
dent arising  out  of  his  employment.  Isaacson  v.  White  Lumber  Co.,  2  Cal.  I. 
A.  C.  Dec.  819. 

5  7  In  Stevenson  v.  Union  Metallic  Cartridge  Co.,  1  Conn.  Comp.  Dec.  621, 
where  the  claimant  caught  her  hand  in  a  belt  in  trying  to  save  herself  from 
falling,  while  on  her  way  to  pass  a  petition  relative  to  working  hours  in  the 
factory  to  another  employ*?,  the  injury  did  not  arise  out  of  her  employment. 
(Wk,  Comp.,  etc.,  Act,  §  12  [a]  [2])  De  Long  v.  Krebs,  1  Cal.  I.  A.  C.  Dec.  592, 

5  8  In  re  Harbroe,  223  Mass.  139,  111  N.  E.  709. 

An  accident  resulting  from  a  risk  reasonably  incident  to  the  employment 
should  be  considered  as  "arising  out  of  the  employment."  Pierce  v.  Boyer- 
Van  Kuran  Lumber  &  Coal  Co.,  99  Neb.  321,  156  N.  W.  509,  Ann.  Rep.  Neb. 
St.  Dept.  of  L.  1915,  Bulletin  32,  p.  94 ;  Walther  v.  American  Paper  Co.  (N. 
J.  Sup.)  98  Atl.  264. 

Where  a  miner  working  in  the  mines  inhaled  poisonous  gases  which  caused 
his  death,  the  injury  causing  death  arose  out  of  the  employment.  Giacobbia 
V.  Kerno-Domewald  Coal  Co.,  Bulletin  No.  1,  111.,  p.  196. 

The  risk  of  assault  is  a  risk  peculiar  to  the  occupation  of  a  bartender,  and 
one  to  which  he  is  especially  exposed ;  where  he  is  assaulted  by  a  drunken 
patron  too  intoxicated  to  know  what  he  is  doing,  the  accident  arises  out  of 
the  employment.    State  ex  rel.  Anseth  v.  District  Court  (Minn.)  158  N.  W.  713. 

A  person  employed  as  a  traveling  salesman,  whose  duty  it  is  to  solicit 
orders  from  grocery  stores,  who  slips  and  falls  while  walking  from  one  store 
to  another  in  the  course  of  his  employment,  is  entitled  to  compensation  for 
disability  sustained  thereby.     The  reason  for  the  slipping  and  falling  is  im- 


411  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION   DUE  §    115 

material,  as  long  as  the  presence  of  some  sufficient  cause  is  inferable,  and  if 
the  accident  occurs  in  the  course  of  the  employment.  Block  v.  Mutual  Bis- 
cuit Co.,  2  Cal.  I.  A.  C.  Dec.  274.  The  risk  of  injury,  from  a  defective  or  dan- 
gerous condition  of  a  building  or  its  contents,  is  one  normally  incident  to 
working  in  that  building,  for  the  risk  is  peculiar  to  the  building,  and  there- 
fore to  the  employment  therein.  Where  a  floor  above  is  caused  to  collapse 
by  overloading  it  with  storage,  by  a  third  party,  and  the  collapse  causes  in- 
jury to  an  employe  in  a  restaurant  below,  although  the  proprietor  and  em- 
ployer of  the  restaurant  has  no  control  of  the  cause,  and  bears  no  blame, 
nevertheless,  the  accident  is  incidental  to  and  arises  out  of  the  employment. 
Douglas  V.  Kimbol,  1  Cal.  I.  A.  C.  Dec.  543.  Where  it  was  the  duty  of  an  em- 
ploye of  a  gas  company  to  read  meters,  shut  off  the  gas  when  patrons  of  the 
company  moved,  collect  accounts,  and  deliver  orders,  and  his  employment  did 
not  end  at  any  particular  hour  or  place,  his  employment  was  continuous,  and 
he  was  at  all  times,  except  when  at  home,  under  the  protection  of  the  com- 
pensation provisions  of  the  law,  and  an|accidental  injury  sustained  by  a  col- 
lision of  his  motorcycle  with  an  automobile,  in  a  public  street,  while  on  his 
way  home,  arises  out  of  his  employment.  Ferguerson  v.  Royal  Indemnity 
Co.,  1  Cal.  I.  A.  C.  Dec.  11. 

Accidents  and  injuries  held  to  have  arisen  out  of  the  employment:  Where 
one  engaged  as  teamster,  whose  special  duty  was  to  care  for  his  team,  feed  the 
same,  and  make  deliveries  to  customers  of  the  employer,  after  his  day's  work, 
took  his  team  to  the  stable,  and  while  unharnessing  and  feeding  the  team, 
passed  behind  the  team  of  a  fellow  employe  and  was  kicked  by  one  of  the  hors- 
es. Gylfe  V.  Suburban  Ice  Co.,  Bulletin  No.  1,  111.,  p.  167.  Massachusetts. 
Where  a  workman  burst  a  blood  vessel  in  the  pial  membrane  of  the  brain  iu 
the  strain  of  cranking  a  coal  delivery  truck,  and  fell  down  unconscious,  dying 
later  from  a  recurrence  of  the  hemorrhage.  Farrell  v.  Casualty  Co.  of  Amer- 
ica, 2  Mass.  Wk.  Comp.  Cases,  423  (decision  of  Com.  of  Arb.).  Where  the 
workman's  death  was  due  to  burns  received  from  the  ignition  of  his  clothing 
by  a  lantern  which  he  was  using  while  about  his  work,  and  which  was  some- 
times used  by  the  employes  in  performing  their  duties.  Parker  v.  American 
Mutual  Liability  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  392  (decision  of  Com. 
of  Arb.).  Where  the  employe  was  injured  in  his  back  and  right  side  in  con- 
sequence of  being  thrown  to  the  street  when  the  tnick  which  he  was  driving 
in  his  master's  business  was  struck  by  an  elevated  car,  and  he  died  several 
mouths  later.  Cripps  v.  Jiltna  Life  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  68  (de- 
cision of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.,  also  by  Sup.  Jud.  Ct.,  216 
Mass.  586,  104  N.  E.  565,  Ann.  Cas.  1915B,  828).  Neiv  Hampshire.  Where  an 
employe  in  a  mill  run  by  water  power  was  drowned  while  attempting  to  clean 
racks  which  protected  the  intake  flume,  such  cleaning  being  part  of  his  duty. 
Boody  V.  K.  of  C.  Mfg.  Co.,  77  N.  H.  208,  90  Atl.  800,  L.  R.  A.  1916A,  10,  Ann. 
Cas.  1914D,  1280.  Neio  York.  Where  a  workman  sometimes  used  his  motor- 
cycle while  on  his  employer's  business,  and  often  worked  on  it  to  repair  it 
during  business  hours,  and  while  he  was  so  working  his  flngers  were  severed  in 


§  115  workmen's  compensation  412 

the  chain  guard  of  the  machine.  Kingsley  v.  Donovan,  169  App.  Div.  828,  155 
N.  Y.  Supp.  801.  Where  a  railroad  employ^  was  severely  burned  when  his 
clothes  caught  fire  from  ignited  waste  while  he  was  wiping  the  tank  of  a 
passenger  engine.  Sieplenska  v.  New  York  Central  R.  R.,  4  N.  Y.  St.  Dep. 
Rep.  395.  Where  a  watchman  on  construction  work  who  fell  from  a  board 
into  the  cellar  while  making  his  rounds.  Sorge  v.  Aldebaran  Co.,  3  N.  Y,  St. 
Dep.  Rep.  390.  In  Cook  v.  N.  Y.  C.  &  H.  R.,  The  Bulletin,  N.  Y.,  vol.  1,  No. 
8,  p.  9,  which  was  so  close  that  it  probably  would  not  have  been  re- 
versed on  appeal  no  matter  which  way  decided,  it  was  held  that  the  gener- 
al presumption  in  favor  of  the  claimant  raised  by  §  21  made  the  injury  com- 
pensable. Iowa.  Where  a  workman  was  required  to  clean  clothing  with 
gasoline,  and  attempted  to  light  his  pipe  while  his  hands  were  still  wet  with 
the  gasoline,  severely  burning  his  hand.  Op.  Sp.  Counsel  to  Iowa  Indus. 
Com.  (1915)  p.  28.  Michigan.  Where  a  carpenter,  working  on  the  roof  of  a 
building  under  construction  on  a  very  cold  day,  was  called  down  for  a  hot 
coffee  lunch,  and  descending  by  a  rope,  instead  of  a  ladder,  was  killed  by 
losing  hold  of  the  rope.  Clem  v.  Chalmers  Motor  Car  Co.,  Op.  Mich.  Indus. 
Ace.  Bd.,  Bui.  No.  3,  p.  40.  CaUfornia.  Where  a  workman  was  run  down  by 
a  vehicle,  while  he  was  repairing  or  putting  down  pavements.  Lera  v.  Fair- 
child-Gilmore-Wilton  Co.,  1  Cal.  I.  A.  C.  Dec.  44.  Where  an  employe  of  a 
water  company  was  hired  to  inspect  the  distributing  system  of  the  company, 
and  remedy  defects  as  found  or  reported  to  him,  immediately  or  as  needed 
in  his  judgment,  regardless  of  the  hours  of  service,  and  the  evidence  showed 
that  after  receiving  a  report  of  trouble  in  the  company's  pipe  lines  he  had 
started  to  search  for  the  defect,  but  was  injured  by  an  automobile  accident 
while  en  route.  Phillips  v.  Chanslor-Canfield  Midway  Oil  Co.,  1  Cal.  I.  A. 
C.  Dec.  580.  Where  a  stableman,  who  by  his  duties  was  required  to  act  as 
watchman  and  protect  against  intruders  his  employer's  property,  situated 
where  trouble  might  occur,  although  the  employer  had  neither  authorized  nor 
forbidden  him  to  carry  or  use  a  pistol  for  that  purpose,  was  accidentally  shot 
while  cleaning  a  pistol  which  he  had  procured  for  his  own  protection  in  the 
performance  of  his  duties.  Benson  v.  Hutchinson  Co.,  2  Cal.  I.  A.  C.  Dec. 
901.  Where  an  employ§  went  out  upon  a  porch,  attached  to  the  kitchen 
where  he  was  employed  as  a  cook,  to  smoke  a  pipe,  and  in  returning  to  the 
kitchen,  to  continue  his  work,  fell  down  the  basement  stairs  and  suffered  a 
fracture  of  the  w^ist.  Espy  v.  Crossman,  2  Cal.  I.  A.  C.  Dec.  328.  Where 
a  school-teacher,  after  dismissing  her  school  for  the  day,  remained  upon  the 
school  premises  to  finish  her  work,  and  while  at  work  went  to  the  telephone 
for  a  moment  to  send  a  message  upon  private  business,  and  was  injured  by 
tripping  over  the  telephone  cord  and  falling.  Rieff  v.  City  of  Sacramento,  2 
Cal.  I.  A.  C.  Dec.  223.  Where  a  chauffeur  had  his  arm  broken  while  cranking 
his  employer's  automobile,  even  though  the  car  had  been  taken  into  the 
garage  for  repairs.  De  Long  v.  Krebs,  1  Cal.  I.  A.  C.  Dec.  592.  Where  a 
"spieler,"  whose  duties  were  to  attract  and  persuade  the  crowd  to  attend  his 


413  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUE  §    115 

employers'  amusement  show,  was  bitten  and  poisoned  by  a  reptile  he  was  ex- 
hibiting. Merritt  v.  Clark  &  Snow,  Inc.,  2  Cal.  I.  A.  C.  Dec.  983.  Where  a  dis- 
location of  the  semilunar  cartilage  of  the  knee  was  caused  by  quickly  rising 
from  a  stooping  position,  required  by  the  nature  of  the  employment.  Giam- 
polini-Lombardi  Co.  v.  Employers'  Liability  Assur.  Co.,  2  Cal.  I.  A.  C.  Dec. 
1010.  Where  a  night  watchman,  while  making  his  rounds  through  the  prem- 
ises of  his  employer,  was  killed  by  falling  through  an  opening  in  the  floor  to 
the  floor  below.  Carter  v.  Hume-Bennett  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec. 
42.  Where  one  employed  to  fight  fire,  just  after  extinguishing  a  fire  and 
while  preparing  to  leave  the  premises,  was  injured  from  stepping  into  a 
hole  in  the  dark.  Mazzini  v.  Pacific  Coast  Ry.,  2  Cal.  I.  A.  C.  Dec.  962.  Co-nr 
necticut.  Where  a  workman,  who  had  been  frequently  rebuked  for  infring- 
ing a  rule  against  smoking,  was  found  dead  in  a  sitting  posture  in  a  place 
where  he  had  no  occasion  to  be,  with  an  unlighted  cigarette  in  his  hand ;  it 
being  held  that,  if  death  were  due  to  injury  (which  was  doubtful),  such  injury 
did  not  arise  out  of  his  employment.  Palama  v.  Chase  Metal  Works,  1  Conn. 
Comp.  Dec.  444.  In  Kane  v.  New  Haven  Union  Co.,  1  Conn.  Comp.  Dec.  492, 
where  it  was  shown  that  decedent,  a  young  man  careless  in  habits,  had  been 
working  in  an  etching  room  where  dust  and  acid  fumes  were  especially  irri- 
tating to  the  lungs,  but  which  was  as  properly  ventilated  and  lighted  as  possi- 
ble, and  had  died  of  tuberculosis,  it  was  held  the  burden  of  proof  to  show 
that  the  injury  arose  out  of  the  employment  was  not  discharged.  In  Shay  v. 
Christian  Feigenspan,  Corp.,  1  Conn.  Comp.  Dec.  232,  where  it  appeared  that 
decedent's  broncho  pneumonia  might  have  been  caused  by  exposure  due  to 
the  employment,  but  there  was  insufficient  evidence  connecting  it  with  the  em- 
ployment to  make  such  finding  any  more  than  a  surmise,  it  was  held  the  plain- 
tifl:'s  burden  was  not  discharged.  In  Miller  v.  Libby  &  Blinn,  1  Conn.  Comp. 
Dec.  377,  where  the  evidence  showed  that  while  it  was  possible  that  the 
claimant's  erysipelas  was  due  to  his  employment,  it  was  equally  probable 
that  it  was  due  to  other  causes  wholly  unconnected  with  the  employment,  it 
was  held  the  claimant  had  not  established  his  claim  by  a  preponderance  of 
evidence.  In  Wilson  v.  Cheney  Bros.,  1  Conn.  Comp.  Dec.  66,  where  the  claim- 
ant sought  to  prove  the  atrophy  of  his  optic  nerve  was  due  to  being  struck 
below  the  eye  by  a  shuttle  which  flew  from  the  loom  where  he  was  working 
by  showing  that  he  had  passed  the  test  at  Ellis  Island,  by  records  of  an  op- 
tician showing  a  normal  condition  of  his  eyes  six  months  before  the  injury, 
and  by  the  opinion  of  an  expert,  and  the  employer  showed  statements  of  the 
claimant  previous  to  the  injury  that  he  had  a  cataract  coming  over  the  eye, 
and  that  it  was  "no  good,"  that  he  was  practically  blind  in  that  eye  immedi- 
ately after  the  injury  (whereas  atrophy  develops  gradually),  and  the  opinion 
of  another  expert  conflicting  with  the  first,  it  was  held  that  the  claimant 
had  not  established  his  case  by  a  preponderance  of  evidence,  as  was  neces- 
sary to  entitle  him  to  an  award.  In  Morse  v.  Waterbury  Clock  Co.,  1  Conn. 
Comp.  Dec.  138,  it  was  held  that  where  a  workman  complained  to  a  fellow 


§115  workmen's  compensation  414 

workman  of  pain  in  his  side,  which  was  later  found  to  be  due  to  a  slight  sep- 
aration of  two  ribs,  which  might  have  been  caused  by  a  strain  in  lifting,  but 
said  workman  was  much  intoxicated  the  night  before,  and  his  condition  seem- 
ed more  likely  to  have  been  caused  by  a  blow  of  some  kind,  he  being  unable 
to  set  any  time  when  a  strain  occurred,  his  burden  of  proof  to  establish  an 
injury  arising  out  of  his  employment  was  not  discharged.  Where  the  medical 
evidence,  though  confiicting,  tended  strongly  to  show  that  indigestion  and  gas- 
tritis from  which  the  claimant  was  suffering,  were  probably  never  due  to 
muscular  strain  as  claimed  by  the  workman  and  his  physician.  Graves  v. 
Connecticut  Mills  Co.,  1  Conn.  Comp.  Dec.  657.  Where  the  claimant  had  a 
blister  form  on  his  index  finger  while  about  his  employment,  and  subsequent- 
ly, wtiile  mending  a  pair  of  shoes  at  home,  the  awl  which  he  was  using  slip- 
ped and  penetrated  the  finger,  and  blood  poisoning  resulted  thereafter,  it  was 
held  that  the  poisoning  resulted  apparently  from  the  injury  by  the  awl,  and 
that  it  did  not  arise  out  of  his  employment.  Palmeri  v.  Greist  Mfg.  Co.,  1 
Conn.  Comp.  Dec.  669.  In  Konzelski  v.  Grifiin-Neuberger  Tobacco  Co.,  1 
Conn.  Comp.  Dec.  50,  where  it  appeared  that  the  workman's  injuries,  received 
while  picking  up  stones  in  a  field,  were  due  to  the  explosion  of  a  dynamite 
cap,  which  might  have  been  there  from  blasting  done  a  year  before,  though 
this  was  extremely  doubtful,  or  might  have  been  dropped  by  fellow  workman 
who  had  been  playing  with  caps  during  the  day,  the  evidence  as  to  how  he 
obtained  the  cap  or  how  it  came  there  being  very  indefinite,  it  wa^  held  that 
the  injury  was  not  shown  to  have  arisen  out  of  the  employment.  England. 
Where  an  insurance  agent  fell  dov^iistairs  while  on  his  rounds,  he  being  on 
the  stair  simply  and  solely  for  the  purpose  of  his  business.  Refuge  Assur- 
ance Co.,  Ltd.,  V.  Millar  (1912)  5  B.  W.  C.  C.  522,  Ct.  of  Sess. 

Diseases  constituting  injuries  arising  out  of  employment:  Where  a  lead 
grinder  was  incapacitated  for  work  by  the  gradual  absorption  of  lead  into 
his  system.  (St.  1911,  c.  751,  as  amended  by  St.  1912,  c.  571)  Johnson  v.  Lon- 
don Guarantee  &  Accident  Co.,  Ltd.,  217  IMass.  388,  101  N.  E.  735.  Where 
au  employe  was  required  as  part  of  his  duties  to  open  a  hole  and  look  at  a 
fire  in  a  furnace  at  15,000°  F.,  in  order  to  see  if  .the  fire  was  properly  sup- 
plied with  coal,  and  became  blind  from  optic  neuritis  caused  by  noxious  gases 
which  escaped  through  the  hole.  Hurle  v.  American  Mutual  Liability  Ins. 
Co.,  2  Mass.  Wk.  Comp.  Cases,  79  (decisi(Wof  Com.  of  Arb.,  afiirmed  by  Indus. 
Ace.  Bd.,  also  by  Sup.  Jud.  Ct.,  217  Mass.  223,  104  N.  E.  336,  L.  R.  A.  1916A, 
270,  Ann.  Cas.  1915C,  919).  Where  the  room  in  which  the  employe,  a  choco- 
late packer,  worked  was  necessarily  kept  at  a  temperature  of  60°  to  65°  F., 
and  facial  paralysis  developed  gradually  because  of  these  working  conditions. 
Dalton  V.  Employers'  Liability  Assur.  Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases, 
231  (decision  of  Com.  of  Arb.).  New  York.  Where  septicaemia  was  con- 
tracted by  an  injured  workman  and  caused  his  death.  (Workmen's  Compen- 
sation Act,  §  3,  subd.  7)  Rist  v.  Larkin  &  Sangster,  171  App.  Div.  71,  156  N. 
Y.  Supp.  875.     Connecticut.     Where  a  watchman  aggravated  the  pain  in  a 


415  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION  DUE  §    115 

remote,  and  when  the  direct  and  immediate  agency  of  injury  is  for- 
eign.®" An  accident  so  arises  where  it  is  either  a  usual  or  normal 
risk  incident  to  the  kind  of  work  being  done,  or  is  of  extraordinary 
character,  but  the  nature  of  the  employment  peculiarly  and  spe- 
cially exposes  the  employe  to  such  risk.^**  It  is  due  to  the  employ- 
ment not  only  when  the  risk  incurred  is  directly  involved  in  the 
employment  itself,^^  but  when   involved  in  the  general  scope  of 

frozen  toe  by  stubbing  it,  and,  becoming  unconscious,  fell  on  tbe  stone  floor, 
sustaining  bruises  of  tbe  back  which  developed  into  an  abscess,  causing  dis- 
ability. Dorrance  v.  New  England  Pin  Co.,  1  Conn,  Comp.  Dec.  2i  (athrmed 
by  superior  court  on  appeal). 

5  9  Archibald  v.  Ott  (W.  Va.)  87  S.  E.  791. 

6  0  Bush  V.  Ickleheimer  Bros.  Co.,  1  Cal.  I.  A.  C.  Dec.  522. 

While  it  cannot  reasonably  be  said  that  the  risk  of  being  shot  by  trespass- 
ing lawbreakers  is  incidental  to  or  has  its  origin  in  a  night  watchman's  or- 
dinary employment,  undoubtedly  there  are  particular  Incidents  where  the 
occupation  of  a  night  watchman  exposes  him  to  risks  substantially  beyond 
the  ordinary  ones,  and  where  the  employment  involves  and  obligates  the 
employe  to  face  such  perils.    In  re  Harbroe,  223  Mass.  139,  111  N.  E.  709. 

61  The  injury  or  accident  arose  out  of  the  employment  where  a  workman, 
with  two  others,  was  pulling  a  hand  chain  connected  with  a  blocK  operating 
a  mechanism  which  caused  a  lifting  chain  to  pass  through  the  block  and  lift 
a  steel  girder,  and  the  lifting  chain  became  clogged,  and,  being  forced 
through,  split  the  rock,  striking  and  injuring  the  workman  (Scott  v.  Payne 
Bros.,  Inc.,  85  N.  J.  Law,  446,  89  Atl.  927) ;  where  a  workman  of  an  ice  com- 
pany was  employed  to  see  that  none  cut  holes  in  the  ice  for  fishing,  but  was 
not  given  any  instructions  as  to  methods,  and  was  drowned,  while  he  was 
near  the  center  of  the  pond,  when  the  ice  broke  (Jillson  v.  Ross  [R.  I.]  9i 
Atl.  717) ;  where  a  girl,  whose  duty  was  to  stand  at  the  top  of  a  threshing 
machine,  near  the  opening  through  which  the  machine  was  fed,  and  who 
crossed  to  the  other  side  of  the  opening  and  sat  down  on  some  sheaves,  in 
the  shelter  of  which  she  ate  some  refreshments  provided  by  her  employer, 
her  hand  being  caught  in  the  machine  when  she  arose  (Carindulf  v.  Gilmore 
[1914]  7  B.  W.  C.  C.  981,  C.  A.) ;  where  a  sailor  was  injured  by  a  fall  down  a 
half-open  hatchway  on  board  a  ship,  while  he  was  washing  his  clothes  in  a 
dark  alleyway  (Cokolon  v.  Owners  of  Ship  Kentra  [1912]  5  B.  W.  C.  C.  65S, 
C.  A.) ;  where  a  ship's  carpenter  was  wearing  oily  trousers,  and  they  were 
ignited  from  shavings  into  which  a  match  had  been  thrown  by  a  shore  la- 
borer (Manson  v.  Forth  &  Clyde  Steamship  Co.,  Ltd.  [1913]  6  B.  W.  C.  C.  830, 
Ct.  of  Sess.) ;  and  where  an  engine  driver,  standing  partly  on  the  engine  and 
partly  on  the  platform,  was  tightening  a  nut,  and  shortly  after  was  seen  lying 


§  115  workmen's  compensation  416 

the  emplo)nnent,®^  or  in  an  act  performed  by  the  employe  in  the 
general  line  of  his  duty  to  his  employer,  as  where  he  attempts  to 
save  the  life  of  or  rescue  a  coemploye  who  is  placed  in  danger  while 
engaged  in  his  employment.*'^     Death  due  to  being  overcome  by 

on  the  permanent  way  between  the  engine  and  the  platform  in  such  a  con- 
dition that  he  died  five  minutes  later,  since  the  accident  could  not  be  dis- 
connected from  the  employment  (Fennah  v.  Midland  Great  Western  Ry. 
[1911]  4  B,  W.  C.  C.  440,  C.  A.). 

The  injury  did  not  arise  out  of  the  employment,  however,  where  a  work- 
man kept  a  can  of  condensed  milk  for  his  lunch  hidden  in  a  dangerous  place 
in  a  printing  machine,  so  that  his  fellow  workmen  would  not  get  it,  and 
injured  his  hand  in  putting  it  back.  Keen  v.  St.  Clement's  Press,  Ltd.  (1914) 
7  B.  W.  C.  C.  542,  C.  A. 

0  2  Where  the  deceased  employe  was  a  cook  on  a  lighter,  where  his  employ- 
ment required  him  to  live,  and  overexerted  himself  while  removing  his  effects 
from  the  sinking  craft,  and  died  soon  thereafter  of  heart  disease  accelerated 
by  such  overexertion,  his  death  was  from  an  "injury  arising  out  of  his  em- 
ployment" ;  that  which  would  have  been  reasonable  for  any  one  to  do  on  leav- 
ing a  sinking  vessel  which  was  his  temporary  home,  was  within  the  scope 
of  his  employment.  In  re  Brightman,  220  Mass.  17,  107  N.  E.  527,  L.  R.  A. 
1916A,  321. 

Where  an  employ^,  engaged  as  a  wagon  washer,  had  cranked  automobiles 
at  the  instance  of  the  machinist,  and  a  number  of  times  in  the  presence  of  the 
foreman  without  objection,  and  was  injured  while  so  cranking  the  machine, 
his  injury  arose  out  of  the  employment.  Cromowy  v.  Sulzberger  &  Sons  Co., 
Bulletin  No.  1,  111.,  p.  37. 

6  3  Where  a  workman  fell  into  a  hole  in  the  floor,  which  could  not  be  seen 
for  escaping  steam,  while  he  was  running  to  answer  a  call  for  help  from  a 
coemploye  who  had  fallen  into  the  hole,  the  accident  was  arising  out  of  his 
employment,  the  court  (opinion  by  Carter,  J.,)  saying:  "It  is  clear  that  it  is 
the  duty  of  an  employer  to  save  the  lives  of  his  employes,  if  possible,  when 
they  are  in  danger  while  in  his  employment,  when  occasion  presents  itself, 
to  do  what  he  can  to  save  the  lives  of  his  fellow  employes  when  all  are  at  the 
time  working  in  the  line  of  their  employment.  Any  other  rule  of  law  would 
be  not  only  inhuman,  but  unreasonable  and  uneconomical,  and  would,  in  the 
end,  result  in  financial  loss  to  employers  on  account  of  injuries  to  their  em- 
ployes. From  every  point  of  view  it  was  the  duty  of  the  deceased,  as  a  fellow 
employe,  in  the  line  of  his  duty  to  his  employer,  to  attempt  to  save  the  life 
of  his  fellow  employ^  under  the  circumstances  here  shown.  That  he  failed  in 
his  attempt  does  not  in  the  slightest  degree  change  the  legal  situation."  Drag- 
ovich  V.  Iroquois  Iron  Co.,  269  111.  478,  109  N.  E.  999.  The  reasoning  of  the 
following  cases  tends   to  support  this  conclusion:    Rees   v.   Thomas,   4  W. 


417  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUE  §    116 

excessive  heat  to  which  the  workman  is  exposed  by  the  conditions 
under  which  he  works  is  compensable.®* 

In  regard  to  using  in  a  judicial  opinion  the  word  "incidental"  in- 
stead of  "arising  out  of,"  the  words  of  the  statute,  Earl  Loreburn 
said:  "I  do  not  repent  of  having  myself,  as  have  other  judges,  in 
trying  to  convey  my  thoughts,  spoken  of  'risks  incidental'  to  an 
employment,  but  that  does  not  mean  merely  risks  which  ordinarily 
occur  in  it.  For  the  future,  however,  in  order  to  prevent  misappre- 
hension, I  shall  confine  myself  to  the  actual  words  of  the  text.  The 
words  are  'arising  out  of.'  "  ^"^  Under  Acts  which,  deviating  from 
the  usual  language,  provide  for  liability  only  where  at  the  time  of 
the  accident  the  employe  is  performing  service  growing  out  of  and 
"incidental  to  his  employment,"  the  effect  seems  to  be  the  same  as 
though  the  usual  words  were  used.^^ 

§  116.     Risks  peculiar  to  employment 

While  it  is  not  ordinarily  essential,  in  order  that  an  accident  or 
injury  may  be  one  arising  out  of  the  employment,  that  it  be  peculiar 

C.  C.  9 ;    Matthews  v.  Bedworth,  1  W.  C.  C.  124 ;    London  &  Edinburgli  Ship- 
ping Co.  V.  Brown,  42  Scottish  L.  E.  357. 

64  In  Wajtenialc  v.  Pratt  &  Cady  Co.,  Inc.,  1  Conn.  Comp.  Dec.  545,  where 
the  workman  died  of  heat  stroke,  and  it  was  shown  that  his  duties  as  a  fur- 
nace tender  subjected  him  to  very  great  heat,  it  was  held  that  the  heat 
stroke  causing  death  was  due  to  his  employment,  and  that  the  injury  arose 
out  of  that  employment.  In  McGan-a"  v.  Hills,  1  Conn.  Comp.  Dec.  533  (affirm- 
ed by  superior  court  on  appeal),  it  was  held  that  plaintiff's  death  from  heat 
exhaustion  was  due  to  working  under  conditions  of  great  heat  and  want  of 
air. 

65  Trim  Joint  District  School  v.  Kelly  (1914)  7  B.  W.  C.  C.  274,  H.  L. 

6  6  Federal  Rubber  Mfg.  Co.  v.  Havolic,  162  Wis.  341,  156  N.  W.  143.  Where 
an  employe  died  of  typhoid  fever  contracted  from  impure  drinking  water 
furnished  by  his  employer,  the  injury  sustained  was  incidental  to  his  employ- 
ment. Yennen  v.  New  Dells  Lumber  Co.,  161  Wis.  370,  154  N.  W.  640,  L.  R.  A. 
1916A,  273. 

The  risk  to  a  cigar  store  clerk  of  injuries  in  a  quarrel  between  him  and  a 
stranger,  not  a  customer,  was  not  incidental  to  nor  a  part  of  his  employment. 
Treadwell  v.  Marks,  3  Cal.  I.  A.  C.  Dec.  3. 
HoN.CoMP.— 27 


§  116  workmen's  compensation  418 

to  the  particular  employment  in  which  the  workman  was  engaged 
at  the  time  of  the  injury,®^  it  must  arise  out  of  a  risk  in  some  way 
peculiar  to  the  business  in  which  he  was  engaged,®^  and  not  come 
from  a  hazard  to  which  he  would  have  been  equally  exposed  apart 
from  the  employment."^  The  causative  danger  must  be  peculiar  to 
the  work,  and  not  common  to  the  neighborhood.  It  must  be  inci- 
dental to  the  character  of  the  business,  and  not  independent  of  the 
relation  of  master  and  servant.'^**     For  example,  an  injury  from  a 

6  7  To  arise  out  of  the  eiiiployment  an  accident  need  not  ordinarily  be  one 
peculiar  to  the  particular  employment  in  which  the  injured  employe  was  en- 
gaged at  the  time  of  the  injury.  State  ex  rel.  People's  Coal  &  Ice  Co.  v.  Dis- 
trict Court,  129  Minn.  502,  153  N.  W.  119,  L.  R.  A.  1916A,  344. 

6  8  Cherry,  L.  J.,  in  Green  v.  Shaw  (1912)  5  B.  W.  C.  C.  573,  C.  A. 

69  "An  injury  which  cannot  fairly  be  traced  to  the  employment  as  a  contrib- 
uting proximate  cause,  and  which  comes  from  a  hazard  to  which  the  workman 
would  have  been  equally  exposed  apart  from  the  employment,"  does  not  arise 
out  of  the  employment.  McNicol's  Case,  215  ^lass.  497,  at  page  499.  102  N. 
E.  at  page  697,  L.  R.  A.  1916A,  306,  distinguished  in  Re  McPhee,  222  Mass. 
1,  109  N.  E.  033. 

7  0  (St.  Wis.  1915,  §  2394—3,  subd.  2)  Federal  Rubber  Mfg.  Co.  v.  Havolic, 
162  Wis.  341,  156  N.  W.  143. 

It  is  essential  that  there  be  some  special  risk  incident  to  the  particular  em- 
ployment, a  risk  which  imposes  a  greater  danger  upon  the  employe  than  upon 
an  ordinary  member  of  the  public.  Sheldon  v.  Needham  (1914)  7  B.  W.  C.  C. 
471,  C.  A.  Fletcher  Moulton,  D.  J.,  says  in  Peel  v.  Lawrence  &  Sons,  Ltd. 
(1912)  5  B.  W.  C.  C.  274,  C.  A.:  "There  was  no  risk  whatever,  other  than  that 
to  which  every  other  human  being  is  exposed.  True,  it  was  done  for  the 
purposes  of  his  work.  Suppose  in  an  employment  part  of  the  terms  was  that 
a  man  should  be  given  lunch,  and  that  he  bolted  his  food  and  so  burst  a  blood 
vessel ;  there  is  no  doubt  that  he  took  his  refreshment  for  the  purpose  of  en- 
abling him  to  do  his  work,  but  there  was  no  risk  whatever  connected  with 
that  work.    That  is  not  an  accident  arising  out  of  his  employment." 

Where  an  employe,  who  drove  a  butcher's  delivery  wagon  and  occasionally 
assisted  in  the  shop,  was  killed  from  stumbling  over  a  bucket  while  he  was 
making  a  delivery  on  foot,  the  injury  did  not  result  from  a  risk  incident  to 
his  employment,  since  by  making  this  delivery  he  was  exposed  to  no  greater 
danger  than  that  to  which  any  other  person  would  have  been  exposed  while 
walking  in  the  same  place.  (Workmen's  Compensation  Act,  §§  3,  2,  groups 
30,  41).    Newman  v.  Newman,  155  N.  T.  S.  665. 

In  the  case  of  Sheldon  v.  Needham,  7  B.  W.  C.  C.  471,  the  English  Court 


419  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUB  §    -1-16 

fall  while  at  work,  caused  by  faintness  or  illness,  and  not  brought 
on  by  the  labor  conditions,  does  not  arise  out  of  the  employment.'^^ 

of  Appeal  held  that  under  the  English  Workmen's  Compensation  Act,  from 
which  the  words  of  the  New  York  statute,  "arising  out  of  and  in  the  course 
of  his  employment,"  were  taken,  a  charwoman  in  regular  emploj-ment,  who 
was  sent  by  her  employer  to  post  a  letter  at  a  post  box  about  100  yards  from 
the  house,  and  who  slipped  on  a  banana  skin  in  the  street  and  fell,  breaking 
her  leg,  was  not  entitled  to  the  benefit  of  the  Act,  for  the  reason  that  the  ac- 
cident, being  due  to  a  risk  no  greater  than  is  run  by  all  members  of  the  pub- 
lic, did  not  arise  out  of  the  employment.  In  all  cases  in  which  the  workman 
has  recovered,  there  has  been  evidence  that  the  occupation  in  which  he  was 
engaged  exposed  him  to  risks  over  and  above  those  run  by  other  people.  The 
object  of  the  statute  was  to  secure  compensation  to  workmen  who  are  engaged 
in  occupations  which  exposed  the  employes  to  danger  from  which  other  occu- 
pations are  free.  But  it  was  as  against  accidents  incidental  to  the  special 
employment  that  the  benefit  of  the  statute  was  given.  Falconer  v.  London 
&  Glasgow  Engineering  &  Iron  Shipbuilding  Co.,  Ltd.  (1901)  3  F.  564,  Ct.  of 
Sess.  (Act  of  1897).  "If  the  risk  was  such  that  by  reason  of  the  work  in 
which  he  was  engaged,  in  the  place  where  he  was  engaged,  and  in  the  man- 
ner in  which  he  was  compelled  to  perform  that  work,  he  was  more  readily 
exposed  to  it  than  the  public  generally,  then  it  was  abnormal  and  incidental 
to  his  employment."  Brown  v.  City  of  Decatur,  188  111.  App.  147.  Where  a 
workman  was  struck  and  killed  by  a  train  while  he  was  crossing  the  tracks 
along  a  water  main  upon  which  he  was  working,  on  his  way  to  a  hand  car 
where  he  wished  to  sit  while  putting  on  his  boots,  preparatory  to  work,  he 
was  injured  by  an  accident  arising  out  of  his  employment  and  incidental 
to  it.  Id.  An  accident  arising  out  of  his  employment  while  doing  that  which 
he  is  directed  to  do  does  not  entitle  a  workman  to  recover  compensation,  un- 
less you  can  say  that  he  was  exposed  to  a  greater  risk  than  a  member  of  the 
general  public.     Slade  v.  Taylor  (1915)  8  B.  W.  C.  C.  65,  C.  A. 

From  the  lack  of  such  risk,  the  accident  did  not  arise  out  of  the  employment 
where  a  workman's  boot  shrank  and  became  too  tight,  injuring  his  toe  (White 
V.  Sheepwash  [1910]  3  B.  W.  C.  C.  382,  C.  A.) ;  where  a  workman  took  oft  his 
boots  and  socks,  so  that  he  could  get  around  better  on  the  wet  floor,  and 
strained  his  finger  in  taking  them  oft  (Peel  v.  Lawrence  &  Sons,  Ltd.  [1912]  5 
B.  W.  C.  C.  274,  C.  A.) ;  where  a  maid  who  was  sewing  before  an  open  window 
saw  a  cockchafer,  attracted  by  the  electric  light,  coming  in,  and,  in  throw- 


TiErickson  v.  Empire  Laundry  Co.,  1  Cal.  I.  A.  C.  Dec.  612. 

Where  the  employg,  while  sweeping  dirt  and  pebbles  from  the  paving,  suf- 
fered a  sudden  attack  of  cardiac  syncope,  and  fell  to  the  pavement,  fracturing 
his  skull,  with  fatal  result,  the  accident  did  not  arise  out  of  his  employment. 
Collins  v.  Brooklyn  Union  Gas  Co.,  171  App.  Div.  381,  156  N.  Y,  Supp.  959. 


§  116  workmen's  compensation  420 

Nor  does  an  injury  so  arise  where  an  employe  suffers  a  hemorrhage 
from  natural  causes  while  engaged  in  his  employer's  business. '^^ 
Bites  by  poisonous  insects,  reptiles,  or  animals  are  industrial  ac- 
cidents only  in  those  instances  where  the  injury  arises  out  of 
and  happens  in  the  course  of  the  employment  and  the  employe  is 
subjected  to  a  special  danger  of  so  being  bitten  by  reason  of  the 
nature  of  his  employment.  In  a  California  case  wherein  it  appeared 
that  an  employe  working  in  a  cannery  was  bitten  by  a  spider  while 
eating  lunch  upon  the  premises,  and  it  was  not  shown  that  the 
cannery  was  to  any  greater  degree  infested  with  spiders  than  other 
buildings  in  the  same  community,  the  Commission  held  the  evi- 
dence insufhcient  to  show  that  the  employment  especially  exposed 
the  applicant  to  the  danger  of  such  injury.'^^  If  the  spider  had  been 
concealed  in  the  fruit  being  handled  at  the  cannery,  and  had  bitten 
him  while  sorting  or  handling  the  fruit,  and   it  could  have  been 

ing  up  hor  hand  to  drive  it  awaj-,  struck  herself  in  the  eye  (Craske  v.  Wigan 
[1910]  2  B.  W.  C.  C.  35,  C.  A.)  ;  where  a  workman  was  stung  by  a  wasp  while 
driving  the  engine  of  a  threshing  machine,  and  death  resulted  (Amys  v.  Bar- 
ton [1912]  5  B.  AY.  C.  C.  117,  C.  A.) ;  and  where  a  workhouse  master,  who  had 
tubercular  trouble,  was  sitting  at  the  top  of  some  stairs  smoking  while  on 
duty,  and  was  seized  with  a  fit  of  coughing,  causing  him  to  fall  down  stairs 
(Butler  V.  Burton-on-Trent  Union  [1912]  5  B.  W.  C.  C.  355,  C.  A.).  Likewise, 
where  a  maid,  after  washing  her  hair,  was  drying  it  outside  the  house,  when 
she  was  called  to  watch  the  baby  in  its  cradle  near  the  fire,  and,  while  con- 
tinuing to  dry  her  hair  before  the  fire,  her  loose  sleeve  caught  fire,  and  she 
was  fatally  burned,  the  injury  did  not  arise  out  of  the  employment.  ClifCord 
V.  Joy  (1910)  2  B.  W.  C.  C.  32,  C.  A. 

7  2  In  re  Sanderson's  Case  (Mass.)  113  N.  E.  355. 

7  3  Sterling  v.  Inderredian  Co.,  2  Cal.  I.  A.  C.  Dec.  172.  Where  a  woman  em- 
ployed in  a  cannery  is  bitten  by  a  spider  while  eating  her  lunch,  such  spider 
bite  cannot  be  considered  to  be  an  accident  arising  out  of  the  employment,  in 
the  absence  of  evidence  tending  to  show  that  the  employment  subjected  the 
applicant  to  more  than  the  ordinary  risk  of  spider  bites.  In  this  case  the  em- 
ployer's premises  were  not  shown  to  be  to  any  greater  degree  infested  with 
spiders  than  any  other  building  in  the  community,  and  the  bite  was  not  receiv- 
ed while  handling  fruit  in  which  spiders  might  be  found.  Goodwin  v.  Libby, 
McNeil  &  Libby,  2  Cal.  I.  A.  C.  Dec.  211. 


421  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    117 

shown  that  this  was  a  rather  common  danger  incident  to  handling 
such  fruit,  the  Commission  would  probably  have  reached  a  different 
conclusion.'^* 

§  117.    Risks  of  commonalty 

Where  there  is  no  natural  connection  between  the  risk  and  the 
employment,  as  in  case  of  lightning,  sunstroke,  assaults,  danger- 
ous animals,  and  the  like,  it  must  be  shown  that  the  nature  of  the 
employment  peculiarly  exposed  the  employe  to  such  danger. 
Otherwise  the  risk  is  one  incident  to  the  commonalty,  and  the  em- 
ployer is  not  liable.^^  Except  when  this  natural  connection  exists, 
risks  of  the  commonalty  ordinarily  include  street  risks,'^  and  risks 

74  sterling  v.  Inderredian  Co.,  2  Cal.  I.  A.  C.  Dec.  172. 

7  5  Ketron  v.  United  Railroads  of  San  Francisco,  1  Cal.  I.  A.  C.  Dec.  528. 

Where  the  workman  froze  the  tips  of  his  fingers  on  a  moderately  cold  day, 
there  being  no  sudden  drop  in  the  temperature  and  no  unusual  or  unforeseen 
conditions  surrounding  the  incident,  he  was  exposed  to  none  but  ordinary 
risks  of  exposure,  and  could  not  recover  compensation.  Aillo  v.  JNIilwaukee 
Refrigerator  Transit  &  Car  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  18. 

7  6  In  Hopkins  v.  Michigan  Sugar  Co.,  1S4  Mich.  87,  150  N.  W.  325,  L.  R. 
A.  1916A,  310,  the  court  held  that  where  a  general  engineer,  employed  to  inspect 
sugar  plants  located  in  different  cities,  slipped  on  the  ice  and  was  fatally  injur- 
ed while  about  to  board  a  street  car  after  returning  to  his  home  town  after  a 
trip  of  inspection,  the  accident  did  not  arise  "out  of"  his  employment;  the 
court  saying  in  an  opinion  by  Judge  Steere:  "Slipping  upon  snow-covered  ice 
and  falling,  while  walking  or  running,  is  not  even  what  is  known  as  peculiar- 
ly a  "street  risk" ;  neither  is  it  a  recognized  extra  hazard  of  travel,  or  partic- 
ularly incidental  to  the  employment  of  those  who  are  called  upon  to  make 
journeys  between  towns  on  business  missions.  These  distinctions  are  recog- 
nized, and  the  rule  correctly  stated,  in  an  opinion  of  the  Michigan  Industrial 
Accident  Board,  filed  in  Worden  v.  Commonwealth  Power  Co.,  20  Det.  Leg. 
News  No.  39  (December  27,  1913),  as  follows:  'It  must  also  appear  that  the 
injury  arose  out  of  the  employment  and  was  a  risk  reasonably  incident  to 
such  employment,  as  distinguished  from  risks  to  which  the  general  public  is 
exposed.  To  illustrate:  *  *  *  On  the  other  hand,  it  may  be  fairly  said 
that  one  of  the  most  common  risks  to  which  the  general  public  is  exposed  is 
that  of  slipping  and  falling  upon  ice.  This  risk  is  encountered  by  people  gen- 
erally, irrespective  of  employment.  *  *  *  '  The  board  also  referred  to  the 
fact  that  claimant  was  upon  his  own  premises  as  of  some  force,  but  appar- 


§    117  workmen's   COMrENSATION  422 

from  walking  on  or  along-  railroad  tracks/^  when  incurred  in  going 
to  or  from  work/^  and  not  on  the  employer's  premises.''^     But  the 

ently  denied  an  award  upon  the  ground  quoted,  wMch  is  well  supported  by 
former  decisions.  In  the  late  case  of  Sheldon  v.  Needham  (1914)  7  B.  W.  C. 
C.  471,  C.  A.,  a  servant  sent  to  mail  a  letter  slipped  in  the  street,  upon  a 
banana  peel  or  some  other  slippery  object,  breaking  her  leg.  Citing  as  con- 
trolling several  cases  Involving  the  same  principle,  the  court  held  that,  al- 
though claimant  was  in  the  performance  of  the  exact  thing  ordered  done, 
there  could  be  no  award,  because  the  accident  was  not  due  to  any  special  or 
extra  risk  connected  with  and  incidental  to  her  employment,  but  was  of  such 
a  nature  as  to  be  equally  liable  to  happen  under  like  circumstances  to  any 
one  in  any  employment,  and  whether  employed  or  not.  This  unfortunate  ac- 
cident resulted  from  a  risk  common  to  all,  and  which  arose  out  of  no  special 
exposure  to  dangers  of  the  road  from  travel  and  traffic  upon  it;  it  was  not 
a  hazard  peculiarly  incidental  to  or  connected  with  deceased's  employment, 
and  there  is  not  shown  to  have  a  causal  relation  with  it,  or  to  have  arisen  out 
of  it."  Slipping  and  falling  on  ice  is  one  of  the  most  common  risks  to  which 
the  public  is  exposed,  and  is  encountered  by  people  generally,  irrespective  of 

7  7  Where  an  employe  of  a  railroad  company,  doing  clerical  work  in  its 
roundhouse,  was  injured  after  he  had  left  his  place  of  employment  for  his 
home  and  had  passed  out  of  the  gate  of  the  roundhouse  yard  and  had  crossed 
a  public  street,  and  was  walking  along  his  employer's  railroad  tracks  running 
diagonally  through  the  next  block,  these  tracks  being  a  short  cut  to  the 
street  car  line,  his  risk  after  reaching  the  public  street  was  that  of  the  trav- 
eling public  in  general.  Hodgkinson  v.  Southern  Pacific  Co.,  2  Cal.  I.  A.  C. 
Dec.  1039. 

7  8  Where  on  the  night  preceding  a  holiday  the  employer,  who  was  going 
away  on  a  business  trip,  requested  his  department  store  manager  to  meet 
him  at  the  store  at  10  o'clock  the  next  morning,  and  the  employe,  while  hur- 
rying to  get  there  in  time,  had  his  wrist  fractured  at  his  home  while  cranking 
his  automobile,  which  he  believed  would  take  him  more  quickly  to  the  store 
than  the  street  cars,  the  case  was  not  an  exception  to  the  general  rule  that 
in  going  to  and  from  his  place  of  employment  the  employe's  risks  are  those 
of  the  commonalty.     Graham  v.  Daly  Bros.,  2  Cal.  I.  A.  C.  Dec.  794. 

7  9  Where  an  employ^  is  given  home  work,  and  on  returning  to  her  place 
of  employment  on  the  following  day  with  a  bundle  of  work  stmnbles  and 
falls  upon  a  public  sidewalk,  not  upon  the  premises  of  the  employer,  sus- 
taining serious  injury  and  disability,  she  is  not  entitled  to  compensation. 
Where  employes  are  going  to  and  returning  from  their  places  of  employment, 
and  are  not  injured  upon  the  employer's  premises,  their  risks  are  those  of 
the  commonalty,  and  do  not  grow  out  of  the  employment.  Malott  v.  Healey, 
2  Cal.  I.  A.  C.  Dec.  103. 


423  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    117 

general  rule  that,  while  an  employe  is  on  his  way  to  or  from  his 
place  of  employment,  his  risks  are  of  the  commonalty,  and  not  of 

their  employment,  and  such  an  accident  does  not  arise  out  of  the  employment. 
Worden  v.  Commonwealth  Power  Co.,  Mich.  Wk.  Comp.  Cases  (1916),  14. 

A  street  railway  motorman.  Injured  by  an  automobile  while  on  his  way  to 
have  his  watch  tested,  which  was  required  by  the  employer,  but  whose  time 
while  so  doing  was  not  paid  for,  suffered  a  general  risk  not  due  to  his  em- 
ployment, and  the  accident  did  not  arise  out  of  it.  De  Voe  v.  New  York 
State  Rys.,  218  N.  Y.  318,  113  N.  E.  256,  affirming  169  App.  Div.  472,  155  N. 
Y.  Supp.  12.  Where  the  employe  went  with  his  employer  in  the  morning  to 
another  part  of  the  city  to  get  merchandise  for  the  day's  sale,  and  on  the 
way  back  stopped  at  a  restaurant  for  breakfast,  as  was  his  usual  custom, 
and  slipped  and  fell  on  the  icy  sidewalk  in  front  of  the  restaurant,  the  risk 
was  one  of  the  commonalty,  and  the  accident  did  not  arise  out  of  the  em- 
ployment.   Bartz  V.  Friedlander,  The  Bulletin,  N.  Y.,  vol.  1,  No.  11,  p.  11. 

The  accident  did  not  arise  out  of  the  employment  where  a  laundry  driver, 
after  putting  up  his  team  for  the  night,  was  riding  home  on  his  bicycle  and 
injured  by  being  run  into  by  an  automobile  (Ogilvie  v.  Egan,  1  Cal.  I.  A.  C. 
Dec.  79) ;  where  a  boy,  employed  in  a  general  retail  store  and  accustomed  on 
going  to  work  each  morning  to  buy  vegetables  for  his  employer  at  a  market 
located  on  the  direct  route  from  his  home  to  the  store,  was  accidentally  in- 
jured by  a  collision  with  a  street  car,  while  on  his  way  to  work  and  before 
reaching  the  market  (Hummer  v.  Henniugs,  2  Cal.  I.  A.  C.  Dec.  859) ;  where  a 
deputy  marshal,  immediately  preceding  the  close  of  his  working  hours,  drove 
his  motorcycle  on  his  usual  route  homeward  to  see  his  wife,  and  incidental 
to  his  purpose  intended  to  inspect  an  electric  light  in  disrepair  on  his  route, 
his  regular  duties  requiring  such  inspection  for  the  purpose  of  making  re- 
port, but  before  reaching  such  light  was  seriously  injured  in  a  collision  with 
a  horse  vehicle  (Eastman  v.  State  Compensation  Insurance  Fund,  2  Cal.  I. 
A.  C.  Dec.  390) ;  where  a  farm  laborer,  starting  out  on  a  bicycle  to  go  to  his 
work,  was  upset  by  his  own  dog  and  fatally  injured  (Greene  v.  Shaw  [1912] 
5  B.  W.  C.  C.  573,  C.  A.) ;  where  a  builder's  laborer,  hurrying  across  the 
street  during  the  breakfast  hour  for  a  supply  of  whitening  for  his  master, 
was  knocked  down  and  injured  by  an  electric  tram  car  (Symmonds  v.  King 
[1915]  8  B.  W.  C.  C.  189,  C.  A.) ;  or  where  a  branch  manager,  who  was  re- 
turning on  a  bicycle  from  a  necessary  visit  to  another  branch  shop  after 
closing  time,  having  ridden  his  bicycle  at  the  suggestion  of  the  manager  of 
the  other  branch,  slipped  sideways  and  was  injured  (Slade  v.  Taylor  [1915] 
8  B.  W.  C.  C.  65,  C.  A.) ;  where  a  newspaper  reporter,  whose  duties  required 
the  gathering  of  news  in  the  town  in  which  he  lived  and  in  the  town  two 
miles  away  where  the  newspaper  was  published,  was  injured  while  returning 
at  the  close  of  a  day's  work  to  his  home  on  the  usual  and  best  bicycle  route, 
on  a  bicycle  furnished  by  the  employer,  his  leg  being  crushed  by  a  passing 


§117  workmen's  compensation  424 

the  particular  employment  in  which  he  is  engaged,  is  not  a  rule  of 
universal  application;  it  applies  more  to  those  cases  where  the 
employer  maintains  a  plant  or  place  of  employment  than  where 
the  place  of  employment  is  changeable.^"  It  is  inaccurate  to  state 
that  under  the  "risk  of  commonalty  doctrine"  the  employer  is  re- 
lieved of  responsibility  if  the  employe's  risk  is  no  greater  than  the 
risk  of  other  persons  in  the  community  so  employed.  A  clerk  cut- 
ting his  finger  while  sharpening  a  pencil  in  the  course  of  his  em- 
ployment is  entitled  to  compensation  if  the  injury  proves  serious, 
notwithstanding  the  fact  that  his  danger  is  no  greater  than  that 
of  any  person  carrying  a  pocketknife,  whether  employv^d  or  not. 
This  doctrine  must  therefore  be  confined  to  cases  where  the  risk  is 
not  naturally  incident  to  the  employment.®^ 

A  clearer  view  of  the  application  of  this  doctrine  may  be  obtained 
by  noticing  further  concrete  cases  wherein  it  has  been  illustrated. 
Where  a  traveling  salesman,  while  conversing  in  a  social  way  in  a 
hotel  at  which  he  was  stopping  on  a  business  trip,  fell,  fracturing 
his  leg,  and  his  fall  was  not  attributable  to  any  defect  or  peculiarity 
of  construction  of  the  hotel  or  to  the  fact  that  he  was  a  guest  there- 
of, the  risk  was  a  risk  of  the  commonalty,  and  not  one  inherent  in 
or  incidental  to  his  employment.®^  Where  a  traveling  salesman 
was  asphyxiated  by  escaping  gas  in  the  hotel  while  asleep,  his 
death  was  due  to  an  ordinary  hazard  of  living,  and  did  not  arise 
out  of  his  employment.®^  But  where  the  engineer  of  a  fishing  boat 
went  to  work  in  the  dark  of  early  morning,  crossing  from  the  wharf 
over  two  other  larger  vessels  to  where  he  had  left  his  boat,  moored 

automobile,  his  rislcs  were  ttiose  of  the  cominonaltj-,  the  same  as  any  other 
bicycle  rider  proceeding  along  that  road,  and  hence  the  accident  did  not 
arise  out  of  his  employment.  State  Compensation  Insurance  Fund  v.  Lemon, 
2  Cal.  I.  A.  C.  Dec.  507. 

80  Slattery  v.  Ocean  Accident  &  Guarantee  Co.,  2  Cal.  I.  A.  C.  Dec.  522. 

81  Ketron  v.  United  Railroads  of  San  Francisco,  1  Cal.  I.  A.  C.  Dec.  52S. 

82  Gaskill  V.  Voorhies  Co.,  2  Cal.  I.  A.  C.  Dee.  1020. 

8  3  Reed  V.  Booth  &  Piatt  Co.,  1  Conn.  Ccmp.  Dec.  121. 


425  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    118 

alongside  another  vessel  because  of  stormy  weather  the  preceding 
night,  and  found  that  the  boat  had  been  changed  in  the  night  to  its 
usual  berth  alongside  a  pier  nearby,  the  captain  calling  out  in  the 
dark  for  him  to  "come  over  here,"  the  falling  of  the  engineer  into 
the  water  while  proceeding  to  return  over  the  two  other  vessels, 
as  necessity  required,  was  an  accident  growing  out  of  and  inci- 
dental to  his  employment.**  When  he  left  the  public  wharf  to  go  to 
the  point  where  he  believed  the  ship  to  be,  or  to  return  from  that 
point  to  the  ship,  his  risks  were  no  longer  those  of  the  common- 
alty, but  were  special  risks  of  his  occupation.*^ 

§  118.     Risks  external  to  the  employment,  but  special  exposure  to 
risk  due  to  the  employment 
An  injury  is  due  to  the  employment  where,  though  the  risk  incur- 
red is  external  to  the  employment,  a  special  degree  of  exposure  to 
the  risk  is  caused  by  the  employment.*^    There  have  been  frequent 

84  Slattery  v.  Ocean  Accident  &  Guarantee  Co.,  2  Cal.  I.  A.  C.  Dec.  522. 

85  Id. 

86  As  a  general  rule  injuries  which  are  suffered  from  so-called  "acts  of 
God,"  such  as  sunstroke,  freezing,  lightning,  etc.,  do  not  arise  out  of  the  em- 
ployment of  an  injured  employe,  for  the  reason  that  such  casualties  are  risks 
which  the  whole  citizenry  takes.  Where,  however,  the  risk  of  the  employe 
for  injuries  of  this  sort  is  clearly  greater  than  that  of  the  average  person  in 
the  same  community,  then  such  special  exposure  to  the  danger  causes  the  ac- 
cident, if  it  occurs,  to  arise  out  of  the  employment.  Fensler  v.  Associated 
Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  447.  Where  a  person  is  employed  in  piling 
and  unpiling  bags  of  cement  in  a  warehouse  which  has  an  iron  roof  and  no 
windows,  and  while  so  employed  upon  a  hot  day,  a  thermometer  outside  reg- 
istering 105  degrees  in  the  shade,  is  overcome  by  heat,  such  employe  was  es- 
pecially exposed  by  his  employment  to  the  danger  of  sunstroke,  and  such 
accidental  injury  arose  out  of  his  employment.    Id. 

The  injury  arose  out  of  the  employment  where  a  lineman,  while  engaged 
in  erecting  a  new  line,  was  forced  by  a  violent  rainstorm  to  seek  shelter  with 
others  under  cars  standing  on  a  switch,  no  other  shelter  having  been  provided 
by  his  employer,  and  was  injured  from  these  cars  being  unexpectedly  moved 
(Workmen's  Compensation  Law,  §  10;  Moore  v.  Lehigh  Valley  R.  Co.,  169 
App.  Div.  177,  154  N.  Y.  Supp.  620) ;  also  where  a  teamsman  was  eating  his 
dinner  in  his  employer's  stable,  which  was  his  proper  place,  and  was  bitten 


§  118  workmen's  compensation  426 

occasions  for  applying  this  rule  to  street  accidents.®'^  Injuries  re- 
ceived on  the  street  by  an  employe  sent  on  a  special  mission  are 

by  the  stable  cat  (Rowland  v.  Wright  [1909]  1  B.  W.  C.  C.  192,  C.  A.).  It 
has  been  held  that  injuries  received  from  lightning  on  a  high  and  unusually 
exposed  scaffold,  from  a  stone  thrown  by  a  boy  from  the  top  of  a  bridge  at 
a  locomotive  passing  underneath,  and  from  an  attack  upon  a  cashier  travel- 
ing with  a  large  sum  of  money,  all  arose  in  the  course  and  out  of  the  em- 
ployment, while  the  contrary  had  been  held  as  to  injuries  resulting  from  a 
piece  of  iron  thrown  in  anger  by  a  boy  in  the  same  service,  from  fright  at 
the  incursion  of  an  insect  into  the  room,  and  from  a  felonious  assault  of  the 
employer.  In  re  Employers'  Liability  Assur.  Corporation,  215  Mass.  497,  102 
N.  E.  697,  L.  R.  A.  1916A,  306— the  court  referring  to  Andrew  v.  Failsworth 
Industrial  Society,  [1904]  2  K.  B.  32,  Challis  v.  London  &  Southwestern  Ry., 
[1905]  2  K.  B.  154,  Nisbet  v.  Rayne  &  Burn,  [1910]  2  K.  B.  689 ;  Armitage  v. 
Lancashire  &  Yorkshire  Ry.  [1902]  2  K.  B.  178 ;  Craske  v.  Wigan,  [1909]  2  K. 
B.  635 ;  Blake  v.  Head,  106  L.  T.  Rep.  822. 

87  A  person  whose  employment  requires  him  to  walk  along  a  certain  por- 
tion of  the  street  several  times  a  day,  regardless  of  weather  conditions,  is  pe- 
culiarly exposed  by  such  employment  to  the  danger  of  street  accidents  while 
walking  along  that  portion  of  the  street  in  question,  and  is  entitled  to  com- 
pensation if  he  is  injured  while  so  doing.  Ketron  v.  United  Railroads  of  San 
Francisco,  1  Cal.  I.  A.  C.  Dec.  528. 

Where  an  employe  was  compelled  to  travel  about  the  streets  in  going  from 
one  job  to  another,  and  was  struck  by  an  automobile  while  en  route  between 
jobs,  it  was  not  unreasonable  to  hold  that  the  danger  of  being  struck  by 
street  cars,  automobiles,  and  traffic  of  every  description  should  be  taken  ac- 
count of,  that  the  very  nature  of  his  occupation  itself  exposed  the  workman 
to  the  unusual  risk  of  an  accident  of  this  nature,  and  that  the  accident  arose 
out  of  his  employment.  Kunze  v.  Detroit  Shade  Tree  Co.  (Mich.)  158  N.  W. 
851. 

In  McKay  v.  Metropolitan  Life  Insurance  Co.,  1  Conn.  Comp.  Dec.  380, 
where  the  claimant's  husband,  an  insurance  collector  and  agent,  was  run 
down  and  killed  by  an  automobile  when  about  to  board  a  car  for  the  pur- 
pose of  keeping  an  appointment  and  making  a  collection,  after  having  just 
left  another  house  where  he  collected  a  bill,  he.  sustained  an  injury  arising 
out  of  his  employment. 

Street  accidents  due  to  increased  risk  arose  out  of  the  employment  where 
a  canvasser  collided  with  a  tram  car  and  was  killed,  while  riding  a  bicycle 
on  his  rounds  (Pierce  v.  Provident  Clothing  &  Supply  Co.,  Ltd.  [1911]  4  B. 
W.  C.  C.  242,  C.  A.) ;  where  a  drayman  was  killed  by  a  motorcar  while  cross- 
ing the  road  to  get  to  his  dray  (IVIartin  v.  Lovibond  &  Sous,  Ltd.  [1914]  7  B. 
W.  C.  C.  243,  C.  A.) ;  where  a  salesman  and  collector  was  kicked  on  the  knee 


427  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    118 

compensable  if  the  mission  is  the  principal  factor  in  such  employ- 
ment, and  not  merely  incidental  to  the  being  on  the  street.^^  The 
ordinary  risks  of  travel  are  naturally  incident  to  travel.  An  em- 
ploye injured  while  using  the  streets  or  vehicles  of  travel  on  his 
employer's  business  is  entitled  to  compensation  without  proof  that 
he  was  specially  exposed  to  the  risk.  It  is  therefore  not  necessary 
that  he  be  employed  as  traveling  salesman,  or  required  to  travel 
more  than  the  average  person.  The  risk  arises  out  of  the  employ- 
ment, whether  he  be  obliged  to  travel  upon  one  occasion  only  or 
regularly.^^  The  employment  of  a  teamster  on  the  streets  of  a  large 

by  a  passing  horse  while  cycling  on  his  rounds  (McNeice  v.  Singer  Sewing 
Machine  Co.,  Ltd.  [1911]  4  B.  W.  C.  C.  351,  Ct.  of  Sess.) ;  and  where  a  railway 
fireman,  returning  home  from  work  by  train  (admittedly  in  the  course  of  his 
employment),  was  last  seen  standing  up  putting  a  basket  on  the  rack  just  as 
the  train  started,  and  immediately  afterward  fell  out  of  the  carriage  and  was 
fatally  injured,  without  any  one  seeing  just  how  the  accident  happened 
(Pomfret  v.  Lancashire  &  Yorkshire  Ry.  Co.,  [1903]  2  K.  B.  718,  5  W.  C.  C. 
22  [Act  of  1897]). 

Where  the  employer  failed  to  furnish  proper  toilet  facilities  for  employes 
in  the  building  where  they  were  at  work,  so  that  they  were  obliged  to  and 
did  habitually  resort  for  such  facilities  to  another  building  of  the  employer, 
which  lay  across  a  public  street,  and  which  custom  persisted  for  a  considera- 
ble time,  and,  as  the  court  was  entitled  to  And,  was  therefore  known  and  as- 
sented to  by  the  employer,  and  where  the  deceased,  while  crossing  the  street 
in  working  hours  to  reach  the  toilet  in  question,  was  struck  by  a  passing 
vehicle,  sustaining  injuries  which  caused  his  death,  the  trial  court  was  jus- 
tified in  finding  that  he  came  to  his  death  by  an  accident  which  arose  out  of 
his  employment.  Zabriskie  v.  Erie  R.  Co.,  86  N.  J.  Law,  266,  92  Atl.  3S5,  L. 
R.  A.  1916A,  315.  This  case  cites  Elliott  v.  Rex  (1904)  6  W.  C.  C.  27,  wherein 
the  court  sustained  an  award  in  favor  of  a  workman  injured  while  coming 
from  the  toilet  during  the  dinner  hour,  and  refused  to  follow  Pearce  v. 
Southwestern  Ry.  Co.  (1S99)  2  W.  C.  C.  152. 

8  8  Malott  V.  Healey,  2  Cal.  I.  A.  C.  Dec.  103. 

89  Bush  V.  Ickleheimer  Bros.  Co.,  1  Cal.  I.  A.  C.  Dec.  522.  The  risk  of 
slipping  while  walking  upon  the  employer's  business  is  directly  incidental  to 
any  employment  which  requires  an  employ^  to  walk  upon  the  business  of  his 
employer.  It  is  therefore  immaterial  whether  he  be  required  so  to  walk  only 
at  irregular  intervals  or  regularly,  as  for  a  traveling  salesman.  Ketron  v. 
United  Railroads  of  San  Francisco,  1  Cal.  I.  A.  C.  Dec.  528. 


§  119  workmen's  compensation  428 

^  city  accentuates  his  street  risks  above  those  of  other  occasional 
travelers,  and  causes  a  special  degree  of  exposure  to  this  risk  ordi- 
narily external  to  the  employment,  and  where  he  is  killed  by  a 
heavy  load  of  beams  which  fall  from  a  building  under  construction, 
the  accident  arises  out  of  his  employment.^" 

§  119.     Injury  from  forces  of  nature 

The  general  rule  drawn  from  the  English  cases  is  that,  where  the 
accident  is  due  to  the  forces  of  nature  which  might  have  been  fore- 
seen, there  is  an  aggravation  of  the  danger  if  the  workman  is  more 
exposed  as  a  result  of  his  employment  than  the  ordinary  man,  and, 
if  the  danger  is  increased  by  reason  of  the  employment,  the  em- 
ployer is  liable.  The  employer  cannot  ordinarily  be  held  liable 
for  compensation  for  disability  from  sunstroke,  freezing,  and  light- 
ning. These  are  forces  of  nature  which  he  cannot  foresee  and  pre- 
vent, and  the  employe  is  ordinarily  no  more  subject  to  injury  from 
such  sources  than  are  others.  But  where  the  work  and  the  method 
of  doing  the  work  exposes  the  employe  to  the  forces  of  nature  to 
a  greater  extent  than  he  would  be  if  not  so  engaged,  the  industry 
increases  the  danger  from  such  forces,  and  the  employer  is  liable. ^^ 

Thus  an  injury  from  being  struck  by  lightning  arises  out  of  the 
employment  where  the  employment  necessarily  placed  the  work- 
man at  the  time  of  the  accident  in  a  position  subjecting  him  to  un- 
usual risk  from  lightning,  but  not  otherwise.^^    In  a  Michigan  case 

90  Mahowald  v.  Thompson- Starrett  Co.  (Minn.)   158  N.  W.  913. 

81  Skougstad  v.  Star  Coal  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  31. 

S2  "As  far  as  tlie  instant  case  is  concerned  the  scope  of  the  English  statute 
may  be  considered  identical  with  the  Michigan  Worlimen's  Compensation 
Law.  Several  cases  have  been  passed  upon  by  the  English  courts  arising  un- 
der the  English  law,  where  compensation  was  sought  for  injury  by  lightning, 
and,  except  in  cases  where  the  employment  necessarily  placed  the  employe 
at  the  time  of  his  injury  in  a  position  subjecting  him  to  unusual  risk  from 
lightning,  compensation  has  been  denied."  Klawinski  v.  Lake  Shore  &  M. 
S.  Ry.  Co.,  185  Mich.  643,  152  N.  W.  213,  L.  R.  A.  1916A,  342. 

A  driver  for  an  ice  company  was  required  to  follow  a  fixed  route,  in  sub- 


1 

I 


429  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    119 

the,  court  quotes  with  apparent  approval  a  memorandum  opinion 
filed  in  the  case  wherein  the  Commission  said:  "Lightning  stroke  is 

stantial  disregard  of  weather  conditions,  tliough  permitted  to  seek  shelter  in 
times  of  necessity.  When  a  severe  rainstorm,  accompanied  by  lightning,  was 
in  progress,  he  left  his  team  and  went  to  a  tall  tree  just  within  the  lot  line, 
either  for  protection  or  in  the  performance  of  his  duties  soliciting  orders. 
Lightning  struck  the  tree,  and  the  same  bolt  struck  him,  and  he  was  killed. 
It  was  held  that  the  evidence  sustained  a  finding  that  the  death  of  the  de- 
cedent was  the  result  of  an  accident  "arising  out  of"  his  employment,  with- 
in the  meaning  of  the  Workmen's  Compensation  Act  (Laws  1913,  c.  467,  §  9 ; 
Gen.  St.  1913,  §  S203),  State  ex  rel.  People's  Coal  &  Ice  Co.  v.  District  Court, 
129  Minn.  502,  153  N.  W.  119,  L.  R.  A.  1916A,  344.  In  this  case  the  court 
cited  State  ex  rel.  Duluth  Brewing  &  Malting  Co.  v.  District  Court,  129  Minn. 
176,  151  N.  W.  912,  wherein  the  court  adverted  to  the  distinction  drawn  by 
the  courts  between  the  statutory  phrases  "arising  out  of"  and  "in  the  course 
of,"  but  did  not  deem  it  wise  to  attempt  the  making  of  a  definition  accurately 
distinguishing  the  two  phrases.  The  court  held  that  the  present  case  did  not 
call  for  such  distinction.  Andrews  v.  Failsworth  Industrial  Society,  Ltd., 
[1904]  2  K.  B.  32,  90  L.  T.  611,  a  leading  case,  holding  that  where  a  brick- 
layer was  killed  by  lightning  while  working  on  a  scaffold  23  feet  from  the 
ground,  in  a  position  which  subjected  him  to  peculiar  danger  and  risk  from 
lightning,  his  death  arose  out  of  his  employment,  and  Roger  v.  School  Board, 
[1912]  S.  C.  583,  wherein  the  court  said:  "To  be  struck  by  lightning  is  a 
risk  common  to  all  and  independent  of  employment,  yet  the  circumstances  of 
a  particular  employment  might  make  the  risk  not  a  general  risk,  but  a  risk 
sufficiently  exceptional  to  justify  its  being  held  that  accident  from  such  risk 
was  an  accident  arising  out  of  the  employment,  were  also  cited.  Notice  was 
taken  of  Klawinski  v.  Lake  Shore,  etc.,  R.  Co.,  1S5  Mich.  643,  152  N.  W.  213, 
L.  R.  A.  1916A,  342,  which  involved  the  death  of  a  railway  section  hand,- 
killed  by  lightning  when  in  a  barn  near  the  right  of  way,  to  which  he  had 
gone  for  protection  from  a  storm.  In  that  case  the  man  was  exposed  to  no 
peculiar  danger  by  the  character  of  his  work.  The  court,  in  referring  to 
cases  under  the  English  law,  said  that  compensation  had  always  been  denied 
for  injury  by  lightning,  "except  in  cases  where  the  employment  necessarily 
placed  the  employ^  at  the  time  of  his  injury  in  a  position  subjecting  him  to 
unusual  risk  from  lightning."  The  opinion  of  the  court  was  that :  "Dece- 
dent, by  reason  of  his  employment,  was  in  no  way  exposed  to  injuries  by  light- 
ning other  than  the  community  generally  in  that  locality."  In  the  Minne- 
sota case  the  court  distinguished  Hoenig  v.  Industrial  Commission  of  Wis- 
consin, 159  Wis.  646,  150  N.  W.  996,  L.  R.  A.  1916A,  339,  holding  that,  where 
an  employe  was  struck  by  lightning  while  working  on  a  dam,  his  death  did 
not  arise  out  of  his  employment.  The  Wisconsin  Industrial  Commission  held 
that  his  death  did  not  arise  out  of  his  employment.     The  circuit  court  af- 


§  119  workmen's  compensation  430 

not  popularly  spoken  of  as  an  accident  where  it  comes  from  the 
action  of  the  elements  without  the  agency  of  man.  When  the  in- 
dustry, through  the  agency  of  man,  combines  with  the  elements 
and  produces  injury  to  the  employe  by  lightning  stroke,  it  may  well 
be  said  that  the  injury  grows  out  of  the  employment  and  is  acci- 
dental. Such  has  been  the  decision  of  the  English  courts  under  the 
English  Compensation  Act.  We  are  aware  that  the  language  of  the 
English  Act  differs  from  the  language  of  our  Act,  but  if  we  accept 
the  construction  of  the  legislative  committee  which  drew  the  Act, 
then  we  find  the  meaning  of  the  two  Acts  in  this  respect  identical. 
Clearly  the  industry  may  be  and  ought  to  be  charged  with  the  bur- 
den resulting  from  the  hazards  of  the  industry  itself.  *  *  *  \Ye 
have  no  desire  to  pass  upon  the  question  of  public  policy.  That 
function  is  wholly  within  the  province  of  the  Legislature.  We 
merely  desire  to  correctly  interpret  the  legislative  intent.  The  leg- 
islative committee  in  its  report  says  that  'compensation  shall  be 
paid  when  the  injury  grows  out  of  the  employment;  it  makes  no 
difference  who  is  to  blame ;  it  is  sufficient  that  the  industry  caused 
the  injury.'    So  in  the  case  of  lightning  stroke,  if  we  can  find  as  a 

firmed  its  holding,  saying,  however,  that  upon  the  same  evidence  it  would  not 
make  a  like  finding,  and  the  holding  was  sustained  by  the  Supreme  Court. 
By  the  Wisconsin  statute  the  findings  of  the  Commission  are  final  upon 
questions  of  fact ;  and  by  section  30  of  the  Minnesota  Act  the  review  by  the 
Supreme  Court  in  compensation  cases  is  by  certiorari,  and  it  is  a  review  of 
questions  of  law  and  not  of  questions  of  fact.  The  Minnesota  case  also  dis- 
tinguished Kelly  V.  Kerry  Council,  42  Ir.  L.  T.  23,  wherein  the  court  held  that 
one  killed  by  lightning  while  working  on  a  public  road  did  not  come  to  his 
death  from  an  accident  "arising  out  of  his  employment,"  and  distinguished 
the  facts  from  those  present  in  the  Andrews  Case,  in  that  there  was  present 
no  peculiar  risk  or  danger  incident  to  the  employe's  work,  so  that  it  could 
be  said  that  the  accident  arose  out  of  his  employment.  Klawinski  v.  Lake 
Shore  &  M.  S.  Ry.  Co.,  185  Mich.  643,  152  N.  W.  213,  L.  R.  A.  1916A,  342. 

In  Jaskulka  v.  Hartford  &  N.  Y.  Transportation  Co.,  1  Conn.  Comp.  Dec. 
542,  it  was  held  that  there  was  insufiicient  evidence  to  show  that  plaiutiflE's 
death  from  sunstroke  was  due  to  the  conditions  of  his  employment,  as  dis- 
tinguished from  that  of  other  persons  working  at  the  same  time  in  the  same 
locality,  and  that  the  injury  was  not  shown  to  have  arisen  out  of  the  em- 
ployment. 


431  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    119 

fact  that  the  injury  grew  out  of  the  employment,  or  that  the  in- 
dustry caused  the  injury,  then  undoubtedly  compensation  should 
be  paid.  Assuming  the  law  to  provide  compensation  for  industrial 
accidents  only — those  growing  out  of  the  employment  and  caused 
by  the  industry — we  must  approach  the  consideration  of  each  case 
of  injury  by  lightning  on  the  question  of  fact.  Did  the  injury 
grow  out  of  the  employment,  and  did  the  industry  cause  the  in- 
jury? The  act  provides  for  compensation  for  'personal  injuries 
accidentally  sustained  *  *  *  where  the  injury  is  proximately 
caused  by  accident.'  We  are  of  the  opinion  that  this  language 
refers  to  industrial  accidents,  those  caused  by  the  industry  and 
chargeable  to  the  industry,  and  does  not  apply  to  injuries  resulting 
from  those  forces  of  nature  described  in  the  common  law  as  acts 
of  God,  such  forces  as  are  wholly  uncontrolled  by  men."  The  rule 
applicable  in  the  case  of  lightning  applies  in  case  of  injury  from- 
other  forces  of  nature  such  as  injury  from  frostbite,^ ^  glare  or  heat 

93  A  longshoreman  employed  In  unloading  a  vessel  on  a  pier  in  an  open 
harbor  is  exposed  to  greater  danger  and  likelihood  of  getting  frozen  than  an 
ordmary  outdoor  worker,  and  the  freezing  of  his  hands  while  so  employed 
was  an  accident  arising  out  of  his  employment.  McManaman's  Case  (Mass.) 
113  N.  E.  287. 

A  workman  hired  to  deliver  coal  during  extremely  cold  weather,  who  froze 
his  foot  in  the  course  of  delivering  a  load  of  coal  at  an  unoccupied  house, 
where  there  was  no  opportunity  to  warm  himself,  was  especially  exposed  to 
the  danger  of  freezing,  and  could  recover  compensation,  even  though  the 
injury  was  one  commonly  known  as  due  "to  the  forces  of  nature."  Skougstad 
V.  Star  Coal  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  31. 

In  Dorrance  v.  New  England  Pin  Co.,  1  Conn.  Comp.  Dec.  24  (affirmed  by 
superior  court  on  appeal),  it  was  held  that  a  watchman  whose  duties  required 
him  to  get  coal  from  a  shed  and  wheel  it  to  the  boiler  room,  about  35  feet 
away,  several  times  during  the  night,  was  not  exposed  to  undue  hazard  of 
frostbite,  and  that  injuries  therefrom  did  not  arise  out  of  his  employment. 

The  injury  did  not  arise  out  of  the  employment  where  the  hand  of  a  jour- 
neyman baker  was  frostbitten  while  he  was  delivering  bread  (Warner  v. 
Couchman  [1912]  5  B.  W.  C.  C.  177,  H.  L.,  and  [1911]  4  B.  W.  C.  C.  32,  C.  A.), 
or  where  a  seaman  had  his  hands  frostbitten  while  handling  frozen  ropes  at 
Halifax,  Nova  Scotia  (Karemaker  v.  Owners  of  S.  S.  Corsican  [1911]  4  B.  W. 
0.  C.  285,  C.  A.). 


§  120  workmen's  compensation  432 

of  the  sun,"*  and  injury  from  being  struck  by  articles  dislodged  by 
the  wind.^^ 

§  120.     Injury  caused  by  coemploye  or  others 

An  accident  arises  out  of  the  employment  where  it  is  incidental 
thereto  and  a  natural  consequence  thereof,  though  caused  by  a 
fellow  workman  ^®  or  others,"  but  not  if  incurred  while  the  injured 

94  The  injury  arose  out  of  the  employment  where  a  seaman,  while  his  ship 
was  in  port  at  Hayti,  was  put  on  duty  on  a  blackened  steel  deck  without  any 
shade,  and  the  reflection  of  the  blazing  sun  injured  his  eyesight  (Davies  v. 
Gillespie  [1912]  5  B.  W.  C.  G.  64,  G.  A.),  and  where  a  seaman  was  incapacitated 
by  sunstroke  while  he  was  painting  the  sides  of  his  ship,  in  port  in  Mexico 
(Morgan  v.  Owners  of  S.  S.  Zenaida  [1910]  2  B.  W.  G.  C.  19,  C.  A.),  but  not 
where  a  school  janitor,  sent  by  the  head  master  to  deliver  a  message  on  a 
very  hot  day,  became  giddy  and  fell,  with  fatal  consequences  (Rodger  v. 
Paisley  School  Board  [1912]  5  B.  W.  G.  G.  547,  Ct.  of  Sess.),  or  where  a 
plumber,  who  was  laying  pipes  in  a  road  on  a  very  hot  day,  was  of  impaired 
vitality,  and  had  to  stoop  a  great  deal,  and  sustained  apoplexy  or  sunstroke 
while  so  employed,  causing  his  death  (Robson,  Eckford  &  Co.,  Ltd.,  v.  Blakey 
[1912']  5  B.  W.  G.  G.  536,  Gt.  of  Sess.). 

8  5  The  injury  arose  out  of  the  employment  where  a  workman  was  stooping 
over  his  work,  so  that  he  could  not  see  the  fall  of  a  piece  of  slate,  which  was 
blown  from  a  neighboring  roof  during  a  gale,  and  was  struck  on  the  head 
by  it  (Anderson  &  Go.,  Ltd.,  v.  Adamson  [1913]  6  B.  W.  G.  G.  874,  Gt.  of 
Sess.),  but  not  where  a  carter  was  leading  his  horse  and  cart  through  a  yard, 
and  a  sheet  of  iron  was  blown  from  a  neighboring  roof  so  as  to  strike  him 
(Kinghorn  v.  Guthrie  [1913]  6  B.  W.  G.  G.  887,  Gt.  of  Sess.). 

9  6  In  Re  Employers'  Liability  Assur.  Gorporation,  215  Mass.  497,  102  N.  E. 
697,  L.  R.  A.  1916A,  306,  it  was  held  that  where  a  workman  was  killed  by  an 
intoxicated  fellow  workman,  whose  dangerous  disposition,  when  intoxicated, 
was  known  to  the  employer,  the  injury  arose  out  of  the  employment.  The 
tourt  said:  "The  injury  came  while  the  deceased  was  doing  the  work  for 
which  he  was  hired.  It  was  due  to  the  act  of  an  obviously  intoxicated  fellow 
workman,  whose  quarrelsome  disposition  and  inebriate  condition  were  well 
known  to  the  foreman  of  the  employer.  A  natural  result  of  the  employment 
of  a  peaceable  workman  in  company  with  a  choleric  drunkard  might  have 
been  found  to  be  an  attack  by  the  latter  upon  his  companion.  The  case  at 
bar  is  quite  distinguishable  from  a  stabbing  by  a  drunken  stranger,  a  felonious 

97  See  note  97  on  following  page. 


433  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    120 

attack  by  a  sober  fellow  workman,  or  even  rough  sport  or  horseplay  by 
companions,  who  might  have  been  expected  to  be  at  work.  Although  it  may 
be  that  upon  the  facts  here  disclosed  a  liability  on  the  part  of  the  defendant 
for  negligence  at  common  law  or  under  the  Employers'  Liability  Act  might 
have  arisen,  this  decision  does  not  rest  upon  that  ground,  but  upon  the  causal 
connection  between  the  injury  of  the  deceased  and  the  conditions  under  which 
the  defendant  required  him  to  work." 

Where  a  workman  was  injured  in  a  light  with  two  Italian  fellow  employes, 
who  disliked  him  because  he  had  previously  taken  their  place  when  they  were 
discharged,  the  accident  was  incidental  to  the  employment,  and  might  have 
been  reasonably  anticipated,  and  therefore  arose  out  of  the  employment. 
Harnet  v.  Steen,  2  N.  Y.  St.  Dep.  Rep.  492  (affirmed  in  169  App.  Div.  905,  153 
N.  Y.  Supp.  1119,  and  in  216  N.  Y.  101,  110  N.  E.  170). 

The  accident  arose  out  of  the  employment  where  a  workman  was  using  a 
brush  which  -belonged  to  another  machine,  and  was  injured  when  the  work- 
man to  whom  it  belonged  snatched  it  from  his  hand,  not  intending  to  cause 
injury  (Ehg.  Act.  1897;  Mclntyre  v.  Rodger  &  Co.  [1904]  6  F.  176);  also 
where  a  newspaper  reporter  was  ordered  by  his  employer  to  get  a  first  copy  of 
the  newspaper  off  the  press  to  see  if  the  makeup  was  correct,  and  was  forcibly 
resisted  by  the  pressman,  the  reporter  repeatedly  and  properly  attempting 
to  do  as  he  was  instructed,  and  then,  when  about  to  report  the  matter  to  his 
superior,  and  as  a  consequence  of  his  proper  efforts,  was  unexpectedly  and 
without  further  provocation  assaulted  (Brown  v.  Berkeley  Daily  Gazette,  2 
Cal.  I.  A.  C.  Dee.  844). 

9  7  Where  a  journeyman  carpenter  was  struck  and  killed  by  a  bar  of  metal, 
which  fell  from  an  upper  story  of  a  building  in  course  of  construction,  upon 
which  he  was  working,  the  bar  being  caused  to  fall  by  the  workman  of  an 
independent  contractor,  the  accident  arose  out  of  his  employment.  That  the 
bar  was  caused  to  fall  by  a  workman  of  an  independent  contractor  did  not 
preclude  recovery  of  compensation.  (P.  L.  1911,  p.  136,  §  2)  Bryant  v.  Fissell, 
S4  N.  J.  Law,  72,  86  Atl.  458.  This  case  cites  Challis  v.  London  &  Southwestern 
R.  Co.,  [1905]  2  K.  B.  154,  holding  that  where  an  engine  driver,  while  driving 
an  engine  under  a  bridge,  was  injured  by  a  stone  dropped  by  a  boy  from  the 
bridge,  his  injuries  were  caused  by  an  accident  arising  "out  of"  and  in  the 
course  of  his  employment,  distinguishing  Armitage  v.  Lancashire  &  Yorkshire 
Ry.  Co.,  [1902]  2  K.  B.  178,  wherein  the  accident  was  not  one  of  the  risks  to 
which  it  was  within  the  scope  of  the  employment  of  the  workman  to  submit, 
and  citing  Nisbet  v.  Rayne  and  Burn,  [1910G  2  K.  B.  689,  holding  that  the 
death  of  a  cashier,  who  was  robbed  and  murdered  in  a  railway  carriage  while 
carrying  money  to  pay  the  wages  of  his  employer's  workmen,  was  caused  by 
accident  arising  "out  of"  and  in  the  course  of  his  employment,  on  the  ground 
that  the  risk  of  being  robbed  and  murdered  is  a  risk  incidental  to  the  employ- 
ment of  those  who  are  known  to  carry  considerable  sums  in  cash  on  regular 
days  by  the  same  route  to  the  same  place,  citing  also  Anderson  v.  Balfour, 

HoN.CoMP.— 28 


§  120  workmen's  compensation  434 

workman  is  acting  outside  the  scope  of  his  employment,®^  or  if 
caused  by  something  done  by  a  fellow  workman  outside  the  scope  of 

[1910]  2  I.  R.  497,  holding  (Cherry,  L,  J.,  dissenting)  that  injury  sustained  by 
a  gamekeeper  through  a  criminal  attack  by  poachers  was  injury  arising  "out 
of"  and  in  the  course  of  his  employment. 

Where  an  employe  with  a  number  of  other  employes,  was  standing  in  line 
before  a  pay  window  for  the  purpose  of  receiving  his  pay  check,  and  some  of 
the  employes  began  pushing  and  shoving  in  a  friendly  way,  and  applicant  was 
pushed  out  of  line  and  received  a  fall,  from  which  he  was  injured,  the  mere 
scuffling  does  not  take  the  employe  temporarily  out  of  the  employment,  but  he 
is  entitled  to  compensation  for  injuries  sustained  while  on  the  grounds  of  the 
employer,  for  he  was  to  all  intents  and  purposes  in  the  employ  of  the  em- 
ployer, and  the  injury  arose  out  of  the  employment.  Garls  v.  Pekin  Cooperage 
Co.,  Bulletin  No.  1,  111.,  p.  75. 

The  fact  that  the  injury,  occasioning  the  death  of  an  employe  while  in  the 
course  of  his  employment,  did  not  result  from  any  negligence  on  the  part  of 
the  employer,  his  officer,  agent,  or  employ^,  but  was  caused  solely  by  the 
negligence  of  a  third  person,  did  not  relieve  the  decedent's  employer  from 
paying  compensation  on  account  of  such  death.  Biddinger  v.  Champion  Iron 
Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  70. 

Accidents  arising  out  of  employment:  Where  several  lads  were  picking 
stones  and  other  foreign  matter  from  coal  as  it  passed  by  them  on  a  moving 
belt,  and  one  of  them  threw  a  stone  at  another,  and  his  eye  was  so  badly 
injured  as  to  have  to  be  removed.  Clayton  v.  Hardwick  Colliery  Co.,  Ltd. 
(1914)  7  B.  W.  C.  C.  643,  C.  A.  Where  an  unpopular  schoolmaster  of  an  in- 
dustrial school  died  of  injuries  received  from  an  assault  by  a  deliberate  con- 
spiracy of  his  pupils.  Trim  Joint  District  School  v.  Kelly  (1914)  7  B.  W. 
C.  C.  274,  H.  L.  W(here  the  foreman  of  a  firm  of  furniture  movers  was  fatally 
injured  by  an  assault  by  a  man  who  had  been  disappointed  in  getting  a  van 
on  hire,  and  the  men  who  hired  vans  on  their  own  account  were  of  a  rough 
class,  and  several  previous  assaults  of  this  nature  had  been  made  on  differ- 
ent persons.  Weekes  v.  Stead  &  Co.  (1914)  7  B.  W.  C.  C.  398,  C.  A.,  where  a 
taxicab  driver,  driving  an  officer  from  Plymouth  to  an  outlying  fort  during 
the  war,  did  not  hear  the  sentry's  challenge,  because  of  the  noise  of  an  engine 
and  stormy  weather,  and  was  shot  in  the  leg.  Thorn  v.  Humm  &  Co.  (1915) 
8  B.  W.  C.  0.  190,  C.  A. 

8  8  Where  a  carpenter  foreman,  working  on  his  brother's  house,  got  into  an 
altercation  with  some  men,  and  his  brother,  taking  charge  of  the  controversy, 
was  succeeding,  and  he  then  began  to  take  part  in  the  tight,  and  was  struck 
by  a  piece  of  iron  thrown  at  him,  the  accident  did  not  arise  out  of  his  em- 
ployment.   Clark  V.  Clark  (Mich.)  155  N.  W.  507. 


435  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    120 

his  employment,^*  particularly  if  the  act  be  malicious,^  or  if  caused 
by  the  willful  act  of  a  third  person  committed  against  the  employe 

9  9  The  injury,  to  be  "out  of"  the  employment,  when  caused  by  a  coemploye, 
must  be  a  natural  incident  of  it,  one  which  a  reasonable  person  familiar  with 
the  situation  might  expect  to  happen  as  a  result  of  the  exposure  caused  by 
the  employment.  The  Act  means  more  than  that  it  (the  accident)  must  arise 
out  of  the  parties  being  brought  together  by  the  employment  (where  the 
accident  results  from  the  act  of  a  fellow-servant).  It  means  that  it  must 
have  an  origin  in  the  occupation  in  which  the  parties  are  engaged.  Ely  v.  M. 
S.  Brooks  &  Sons,  1  Conn.  Comp.  Dec.  390  (superior  court  reversing  commis- 
sioner). 

Where  a  workman  engaged  in  installing  machinery  was  taken  ill,  and  being 
advised  by  an  employ^  of  the  company  on  whose  premises  he  was  working  to 
take  some  salts,  which  the  employ^  said  might  be  had  at  a  certain  place  in 
the  factory,  took  a  chemical  from  the  place  indicated,  which,  however,  was 
poison  and  resulted  in  his  death,  the  accident  did  not  arise  out  of  his  em- 
ployment.   O'Neil  V.  Carley  Heater  Co.,  218  N.  Y.  414,  113  N.  E.  406. 

Where  a  17  year  old  boy,  carrying  toys  from  the  basement  to  a  reserve 
room,  steps  into  the  room  of  a  fellow  employe  with  whom  he  was  very  friendly, 
and  with  the  remark,  "Look  pleasant,"  points  the  toy  camera  at  him  and, 
pressing  the  button,  causes  the  wire  spring  to  shoot  into  his  face,  striking  and 
destroying  the  sight  of  one  of  his  eyes,  such  accident  does  not  arise  out  of 
the  employment,  and  such  injured  employe  is  not  entitled  to  compensation. 
The  act  causing  injury  was  more  than  a  mere  pleasantry  in  passing,  as  in 
Flint  V.  Coronado  Beach  Co.  The  act  of  pointing  a  toy  camera  and  discharg- 
ing it  was  of  such  a  character  that  the  possibility  and  even  probability  of 
harm  coming  thereby  should  reasonably  have  been  anticipated  by  the  offend- 
ing employe,  notwithstanding  the  fact  that  he  was  a  boy  17  years  of  age. 
Fishering  v.  Daly  Bros.,  2  Cal.  I.  A.  C.  Dec.  940. 

The  injury  did  not  arise  out  of  the  employment  where  a  workman  was 
injured  by  a  piece  of  iron  thrown  in  anger  by  another  workman  at  a  third 
(Armitage  v.  Lancashire  &  Yorkshire  Railway  Co.  [1902]  4  W,  C.  C.  5,  C.  A.); 
where  a  mine  worker,  in  dodging  some  rubbish  thrown  by  a  fellow  workman, 
struck  his  head  against  the  side  of  the  passage  and  was  injured  (Baird  &  Co., 
Ltd.,  v.  Burley  [1909]  1  B.  W.  C.  C.  7,  Ct.  of  Sess.) ;  and  where  one  workman 
pushed  a  fellow  workman,  without  any  reason,  and  he  in  saving  himself 
accidentally  injured  the  eye  of  his  assailant  (Shaw  v.  Wigan  Coal  &  Iron 
Co.,  Ltd.  [1910]  3  B.  W.  C.  C.  81,  C.  A.). 

lA  workman,  Injured  by  a  malicious  act  of  a  fellow  workman,  does  not 
come  within  the  scope  of  the  Washington  act.  (Wk.  Comp.  Act  Wash.  §  3) 
Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  5. 


§  120  workmen's  compensation  436 

for  reasons  personal,  and  not  because  of  his  employment,^  or  be- 
cause such  third  person  is  drunk. ^  An  act  done  by  some  one  who 
happens  to  be  in  the  same  employment,  which  has  no  relation  to 
that  employment,  but  was  a  wrongful  act,  and  was  intended  to 
be  a  wrongful  act  against  another  person  in  the  same  employment, 
is  not  within  the  scope  of  the  employment  as  part  of  the  risk  of  the 
employment.*     For  a  workman  to  throw  something  at  another  is 

2  Eveu  though  the  Injury  or  death  he  caused  by  the  tort  of  a  third  person, 
under  the  Washington  Act  the  employe  may  obtain  compensation  by  election 
and  assignment,  except  where  a  willful  act  of  such  third  person,  committed 
against  the  employe,  is  for  reasons  personal  and  not  because  of  his  employ- 
ment.    (Wk.  Comp.  Act  Wash.  §  1)  Railings  Wash.  Indus.  Ins.  Com.  1915,  p.  3. 

Fatal  injuries  to  a  cigar  store  clerk,  sustained  in  a  quarrel  between  him 
and  a  stranger,  not  a  customer,  did  not  arise  out  of  his  employment,  in  the 
absence  of  evidence  that  the  quarrel  was  not  a  personal  one.  Treadwell  v. 
Marks,  3  Cal.  I.  A.  C.  Dec.  3. 

An  assault,  to  come  within  the  Compensation  Act,  must  either  be  pending 
the  employment  of  the  one  who  commits  it,  or  so  shortly  after  the  cessation 
of  the  employment  as  to  be  necessarily  connected  with  it,  or  at  least  must  be 
for  some  real  grievance  shown  to  have  arisen  out  of  the  employment.  Cowen 
V.  Cowen  New  Shirt  Laundry,  Inc.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  8,  p.  11. 

Where  a  workman,  in  a  quarrel  with  another  employ§  fell  back  against  a 
machine,  and  died  without  recovering  consciousness,  his  injury  did  not  arise 
out  of  the  employment.  Malloy  v.  Fidelity  &  Casualty  Co.  of  N.  T.,  2  IMass. 
Wk.  Comp.  Cases,  401  (decision  of  Com.  of  Arb.). 

Where  an  engineer  was  shot  in  pursuance  of  the  premeditated  purpose  and 
intention  of  a  fellow  workman,  the  occurrence  was  not  an  industrial  accident, 
though  it  happened  on  the  premises  of  the  employer,  since  there  was  no 
greater  hazard  of  being  shot  about  those  premises  than  any  other.  Arnold  v. 
Holeproof  Hosiery  Co.,  Rep.   Wis.  Indus.  Com.  1914r-15,  p.  32. 

3  The  injury  did  not  arise  out  of  the  employment  where  a  cook  In  a 
hotel,  in  trying  to  avoid  the  pestering  of  a  drunken  guest  who  came  into  the 
kitchen,  injured  her  arm  (Murphy  v.  Berwick  [1910]  2  B.  W.  C.  C.  103,  C.  A.), 
or  where  a  drunken  man,  who  had  been  told  by  a  carter  to  leave  his  horse 
alone,  struck  the  carter  two  blows,  and  the  carter  died  from  the  results 
(Mitchiuson  v.  Day  Bros.  [1913]  6  B.  W.  C.  C.  191,  C.  A.). 

The  injury  received  by  a  bartender  from  a  glass  thrown  at  him  by  a  drunken 
patron,  who  does  not  know  what  he  is  doing,  arises  out  of  the  employment, 
where  the  glass  is  not  thrown  in  a  personal  altercation  between  them.  State 
ex  reL  Anseth  v.  District  Court  (Minn.)  15S  N.  W.  713. 

4  Armitagc  v.  Lancashire  &  Yorkshire  Railway  Co.  (1902)  4  W.  C.  C.  5,  C.  A. 


437  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUB 


120 


not  a  danger  which  is  incidental  to  employment  in  a  coal  mine,  but 
is  an  act  which  is  entirely  outside  the  scope  of  the  employment.^ 
But  the  disobedience  by  fellow  workmen  is  as  much  one  of  the  risks 
of  a  man's  employment  as  a  defect  in  the  mechanical  appliances.* 
That  the  injury  was  caused  by  an  independent  criminal  agency 
does  not  render  it  noncompensable  where  the  danger  of  injury 
by  such  means  was  an  incident  of  the  performance  of  the  work,  as 
well  as  of  the  time  and  place  of  the  performance.'^  Injuries  received 
in  protecting  the  employer's  property  or  interests  against  law 
violators  are  compensable  where  the  injured  employe's  acts  are 
within  the  scope  of  his  employment,  as  where  one  in  charge  of  his 
employer's  business  or  property  and  in  the  discharge  of  his  duties 
is  injured  by  an  unruly  employe,®  trespasser,^  robber,^*'  or  passen- 

5  Baird  &  Co.,  Ltd.,  v.  Burley  (1909)  1  B.  W.  C.  C.  7,  Ct.  of  Sess. 

6  Scott  V.  Payne  Bros.,  Inc.,  85  N.  J.  Law,  446,  89  Atl.  927,  citing  Bryant 
V.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  45S;  Archibald  v.  Ott  (W.  Va.)  87  S.  E. 
791. 

7  This  appears  from  cases  heretofore  noticed.  An  injury  to  a  railroad  en- 
gine driver,  occasioned  by  a  stone  thrown  from  a  bridge  by  a  boy  while  the 
engine  was  passing  under  it,  was  held  to  be  an  accident  arising  out  of  the 
employment  (Challis  v.  London  &  S.  W.  Ry.  Co.,  [1905]  2  K.  B.  154),  because 
such  a  danger  is  a  matter  of  common  knowledge  and  is  accordingly  deemed 
to  have  been  within  the  contemplation  of  both  master  and  servant.  Murder 
of  a  paymaster  incident  to  his  robbery  is  an  accident  arising  out  of  the  em- 
ployment (Nisbet  V.  Rayne  and  Burn,  [1910]  2  K.  B.  689),  because  the  habitual 
carrying  of  large  sums  of  money  in  the  course  of  the  employment  and  as  an 
act  of  service  therein  is  an  exposure  to  the  risk  of  an  attack  by  robbers.  A 
premeditated  fatal  assault  on  a  schoolmaster  by  bad  and  unruly  pupils  is 
an  accident  arising  out  of  the  employment  (Trim  Joint  District  School  Board 
v.  Kelly  [1914]  App.  Cas.  667). 

8  The  danger  of  being  turned  upon  and  beaten  by  an  unruly  employ^  in 
the  event  of  being  reproved  or  discharged  for  disobedience  is  a  risk  which 

9  The  injury  arose  out  of  the  employment  where  a  mill  superintendent  was 
shot  and  killed  by  a  trespasser  whom  he  ordered  out,  and  it  was  not  only  a 
part  of  his  general  duties  to  order  off  trespassers,  but  he  had  special  instruc- 
tions as  to  this  particular  trespasser  (In  re  Reithel,  222  Mass.  163,  109  N. 
E.  951,  L.  R.  A.  1916A,  304,  and  where  a  gamekeeper  on  duty  was  attacked 
by  poachers  and  injured  (Anderson  v.  Balfour  [1910]  3  B.  W.  C.  C.  588,  C.  A.). 

10  See  note  10  on  following  page. 


§  120  workmen's  compensation  438 

ger/^  or  by  a  customer  on  whom  he  is  waiting,^^  and  where  a  peace 
officer  is  injured  in  attempting  to  make  an  arrest  or  prevent  a  dis- 

every  foreman  takes,  and  arises  out  of,  and  is  incidental  to,  liis  employment. 
Assaults  arising  out  of  the  exercise  of  his  authority  by  a  foreman  are  to  be 
distinguished  from  ordinary  fights  between  two  workmen  upon  a  job.  Rud- 
der V.  Ocean  Shore  R.  R.  Co.,  1  Cal.  I.  A.  C.  Dec.  209.  Where  an  assistant 
foreman  was  assaulted  by  two  workmen,  whom  he  had  just  reprimanded  for 
not  doing  their  work  properly,  the  accident  arose  out  of  the  employment. 
Yume  V.  Knickerbocker  Portland  Cement  Co.,  3  N.  Y.  St.  Dep.  Rep.  353  (af- 
firmed in  169  App.  Div.  905,  153  N.  Y.  Supp.  1151). 

But  where  a  teamster,  whose  mules  broke  the  tongue  of  his  wagon  and  put 
him  in  a  frenzy  of  anger,  unexpectedly  beat  the  foreman,  who  was  standing 
near,  for  not  having  rendered  certain  assistance,  such  unprovoked  assault  did 
not  constitute  a  compensable  accident,  there  having  been  no  instructions  giv- 
en by  the  foreman,  or  attempt  to  discharge  or  discipline  the  teamster.  Peter- 
sen V.  Valley  Pipe  Line  Co.,  2  Cal.  I.  A.  C.  Dec.  606.  Nor  was  the  accident 
compensable  where  a  foreman  was  injured  by  a  former  employe,  and  it  did 
not  appear  that  the  foreman  received  the  injury  in  the  necessary  performance 
of  his  duties,  or  that  the  unprovoked  assault  was  even  accidental  as  to  the 
former  employe.    Halm  v.  Marshall,  2  Cal.  I.  A.  C.  Dec.  605. 

10  The  danger  of  being  held  up  by  a  highwayman  is  a  risk  of  the  occupa- 
tion which  every  street  car  conductor  or  motorman  has  to  take,  and  may 
properly  be  held  to  arise  out  of  the  employment.  Morrison  v.  Los  Angeles  Ry. 
Corp.,  2  Cal.  I.  A.  C.  Dec.  18.  Where  a  bartender  is  shot  on  his  refusal  to 
throw  up  his  hands  at  the  order  of  hold-up  men  attempting  to  rob  a  saloon 
at  midnight,  and  while  he  is  trying  to  reach  the  adjoining  room  to  get  a  re- 
volver, the  accident  arises  out  of  the  employment  Henning  v.  Heuning,  2 
Cal.  I.  A.  C.  Dec.  733.  Where  a  night  watchman  in  a  paper  mill  was  required 
in  his  rounds  to  visit  places  accessible  and  particularly  inviting  for  an  attack 
upon  him,  and  the  risk  of  attack  was  a  complement  of  his  employment,  he 
being  employed  for  that  particular  purpose,  an  assault  for  the  purpose  of  rob- 
bery by  a  coemployS  was  an  accident  arising  out  of  his  employment.  Walther 
V.  American  Paper  Co.  (N.  J.  Sup.)  98  Atl.  264. 

11  Under  the  Washington  Act,  employes  who  are  injured  by  third  persons 
while  actually  engaged  in  the  performance  of  their  duties  are  entitled  to  com- 
pensation for  disabilities  resulting,  as,  for  example,  street  car  conductors, 
assaulted  by  disorderly  passengers  for  insisting  on  obedience  of  the  com- 
pany's rules.  (Wk.  Comp.  Act  Wash.  §  3)  Rulings  Wash.  Indus.  Ins.  Com. 
1915,  p.  6. 

12  The  employe  had  been  instructed  to  decline  to  supply  a  certain  customer 
with  merchandise  until  he  had  paid  a  bill  long  overdue.  This  customer,  after 
having  paid  his  bill  and  received  the  goods  ordered,  later  had  occasion  to  pass 


439  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    120 

turbance.^^  On  the  other  hand,  an  injury  is  not  compensable  where 
the  risk  thereof  was  not  involved  in  the  employe's  duties.^* 

the  employe,  and,  being  in  an  angry  mood  because  of  the  latter's  refusal  to 
serve  him  in  the  first  instance,  called  the  employe  a  name  and  struck  at  him 
as  he  passed.  The  employ^  parried  the  blow  and  the  customer  laid  hands  on 
him,  the  employe  meanwhile  resisting,  with  the  result  that  the  latter  receiv- 
ed the  personal  injury  which  caused  him  to  be  totally  incapacitated  for 
work.  The  Committee  of  Arbitration  came  to  the  conclusion  that  the  employ^ 
was  subjected  to  a  risk  in  the  proper  carrying  out  of  his  employer's  orders 
through  no  contributory  action  or  remark  of  his  own.  Tlie  Board  affirmed  the 
Committee's  decision  and  held  that  the  employe  was  entitled  to  compensation. 
O'Connor  v.  London  Guarantee  &  Accident  Co.,  Ltd.,  2  Mass.  Wk.  Comp.  Cas- 
es, 387  (decision  of  Com.  of  Arb.,  aflirmed  by  Indus.  Ace.  Bd.). 

Where  the  secretary  and  office  manager  of  a  company  is  shot  by  a  custom- 
er, who  has  been  sued  by  the  company  to  collect  an  unpaid  account,  the  as- 
sault being  entirely  unexpected  and  unprovoked,  and  occurring  in  the  office 
of  the  company  when  the  customer  comes  in  and  demands  a  receipt  in  full 
for  the  account,  which  has  been  paid,  and  while  the  secretary  is  making  out 
the  receipt,  the  accident  arises  out  of  the  employment.  Craycroft  v.  Cray- 
croft-Herrold  Brick  Co.,  2  Cal.  I.  A.  C.  Dec.  654. 

13  Where  a  deputy  marshal,  in  attempting  to  ascertain  the  cause  of  a  dis- 
turbance and  to  induce  the  disturber  to  desist,  is,  without  reason,  shot  by 
such  disturber,  the  accident  is  peculiarly  a  risk  of  that  employment,  and  com- 
pensable. Acrey  v.  City  of  Holtville,  2  Cal.  I.  A.  C.  Dec.  587.  Where  a  city 
marshal  is  murdered  by  persons  whom  he  is  seeking  to  arrest  as  suspicious 
characters,  his  widow  is  entitled  to  a  death  benefit.  Colson  v.  City  of  Bur- 
bank,  2  Cal.  I.  A.  C.  Dec.  127. 

14  Petersen  v.  Valley  Pipe  Line  Co.,  supra;    Halm  v.  Marshall,  supra. 

The  injury  did  not  arise  out  of  the  employment  where  a  workman,  seeking 
to  assist  his  employer,  who  had  been  beset  by  rowdies,  was  stabbed  and  fatal- 
ly injured  (Collins  v.  Collins  [1907]  2  Ir.  R.  104,  C.  A.);  nor  where  an  er- 
rand boy  was  assaulted  by  his  employer,  who  had  been  in  an  asylum,  and 
was  subject  to  fits  of  melancholia  (Blake  v.  Head  [1912]  5  B.  W.  C.  C.  303, 
C.  A.) ;  nor  where  the  agent  and  collector  of  a  brewery  was  murdered  while 
making  a  delivery  of  beer,  and  it  did  not  appear  that  the  purpose  of  the  at- 
tack was  robbery,  a  risk  connected  with  his  employment,  or  that  the  em- 
ployer had  any  reason  to  anticipate  that  the  attack  would  be  made  (Schmoll 
V.  Weisbrod  &  Hess  Brewing  Co.  [N.  J.  Sup.]  97  Atl.  723). 

In  Devanzo  v.  Jarvis,  1  Conn.  Comp.  Dec.  435  (affirmed  by  superior  court 
on  appeal),  where  the  claimant  while  at  work  was  feloniously  assaulted  by 
two  disreputable  men,  who  had  previously  been  his  coemploy^s  and  who  had 
been  discharged,  the  attack  being  due  to  animosity  cherished  because  claim- 


§120  workmen's  compensation  440 

Where  a  night  watchman  is  murdered  by  burglars  Vv-hom  he  has 
surprised  on  the  premises  of  his  employer,  his  death  is  caused  by 
an  accident  arising  out  of  his  employment.^^  But  the  occurrence 
does  not  arise  out  of  the  employment  where  he  is  shot  and  killed  by 
a  fellow  watchman  temporarily  insane,  and  the  employer  and  all 
other  persons  were  previously  unaware  of  his  tendency  to  insan- 
ity.^ ^  Nor  does  the  injury  so  arise  where  a  night  watchman,  mis- 
takenly believing  that  two  officers  are  robbers,  fires  at  them,  and 
they  believing  him  to  be  a  robber,  return  the  fire,  injuring  him,  and 
it  appears  that  his  duties  do  not  involve  the  risk  of  the  injury  re- 
ceived.^^ 

Where  the  owner  of  a  small  store,  also  local  agent  for  an  express 
company  is  killed  while  defending  his  store  from  robbery,  and  it 
does  not  appear  that  the  robbers  were  endeavoring  specifically  to 
steal  the  express  company's  property,  but  were  merely  looking  for 
valuables,  without  regard  to  ownership  or  custody,  the  death  does 
not  arise  out  of  the  employment,  and  the  express  company  is  not 
liable/8 

§  121. Injury  from  horseplay  or  practical  joking 

Unless  the  workman  is  actually  engaged  at  the  particular  time 
in  the  performance  of  some  duty  which  contributes  to  the  injury,  an 
injury  to  a  workman  from  skylarking  or  horseplay  or  practical 
joking,  though  it  may  arise  in  the  course  of,  cannot  be  said  to  arise 

ant  had  secured  their  discharge,  it  was  held  the  injury  did  not  arise  out  of 
the  employment.  In  Loesser  v.  East  Shore  Amusement  Co.,  1  Conn.  Comp. 
Dec.  449,  it  was  held  that  where  a  bartender  was  injured  about  the  face  and 
eye  by  a  glass  thrown  at  him  by  the  porter  in  the  saloon,  immediately  fol- 
lowing an  altercation  over  a  half-eaten  sandwich  of  claimant,  which  the  por- 
ter had  thrown  away,  the  injury  did  not  arise  out  of  the  employment. 

15  Mason  v.  Western  Metal  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  284. 

16  Allyn  V.  Fresno  Brewing  Co.,  2  Cal.  I.  A.  C.  Dec.  7S4. 

17  In  re  Harbroe,  223  Mass.  139,  111  N.  E.  709. 

18  Herrick  v.  Wells  Fargo  &  Co.,  2  Cal.  I.  A.  C.  Dec.  85. 


441  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    121 

out  of,  the  employment,  whether  the  injured  person  instigated  the 
occurrence  or  took  no  part  in  it.^®    It  has  been  held,  however,  that 

19  "If  two  workmen  leave  tbeir  work  and  begin  to  indulge  in  horseplay, 
they  are  not  doing  their  master's  work,  but,  on  the  contrary,  are  doing  what 
is  absolutely  inconsistent  with  the  carrying  on  of  their  master's  work,  and 
it  cannot  be  said  that  anything  which  happens  in  consequence  of  such  conduct 
arises  out  of  the  employment."  (Eng.  Act  1897)  Lord  Justice  Clerk,  in  Mc- 
Intyre  v.  Rodger  &  Co.  (1904)  6  F.  176. 

If  an  employ^  is  assaulted  by  a  fellow  workman,  though  in  play,  an  in- 
jury so  sustained  does  not  arise  out  of  the  employment.  Pierce  v.  Boyer-Van 
Kuran  Lumber  &  Coal  Co.,  99  Neb.  321,  156  N.  W.  509. 

An  employ^  who  is  injured  by  a  practical  joke  or  by  the  horseplay  of  his 
fellow  employes  is  not  entitled  to  compensation.  Such  injury  does  not  arise 
out  of  his  employment,  for  the  reason  that  it  bears  no  relation  to  the  duties 
he  is  required  to  perform.  Koch  v.  Oakland  Brewing  &  Malting  Co.,  1  Cal. 
I.  A.  C.  Dec.  373. 

An  employer  is  not  liable,  under  the  Workmen's  Compensation  Act  (P.  L. 
1911,  p.  134),  to  make  compensation  for  injury  to  an  employ^  which  was  the 
result  of  horseplay  or  skylarking,  so  called,  whether  the  injured  or  deceased 
party  instigated  the  occurrence  or  took  no  part  in  it;  for,  while  an  accident, 
happening  in  such  circumstances,  may  arise  in  the  course  of,  it  cannot  be  said 
to  arise  out  of,  the  employment.  HuUey  v.  Moosbrugger,  88  N.  J.  Law,  161, 
95  Atl.  1007,  L.  R.  A.  1916C,  1203. 

In  Armitage  v.  L.  &  Y.  Ry.  Co.,  L.  R.  [1902]  2  King's  Bench,  178,  a  boy  of 
16  years  of  age,  engaged  at  work  where  he  and  other  boys  were  employed, 
was  pushed  into  a  pit  by  another  boy  for  a  "lark."  Becoming  angry,  he  pick- 
ed up  a  piece  of  iron  and  threw  it  at  the  boy  who  pushed  him  in ;  it  missed 
him,  and  hit  another  boy  in  the  eye,  injuring  him,  for  which  he  claimed  com- 
pensation from  his  employer.  The  county  court  judge  held  that  the  accident 
was  one  which  arose  out  of  and  in  the  course  of  the  boy's  employment,  and 
awarded  compensation.  This  judgment  was  reversed.  Three  opinions  were 
delivered  in  the  case.  Collins,  M.  R.,  held  that  the  findings  of  the  county 
judge  on  questions  of  fact,  if  there  be  evidence  to  support  them  and  he  has 
not  misdirected  himself  in  point  of  law,  are  final.  Among  other  things,  he 
said,  at  page  181:  "A  boy,  engaged  in  the  same  work  as  the  respondent,  in 
anger  threw  a  piece  of  iron  at  another  boy,  which  missed  him  and  hit  the  re- 
spondent. This  was  a  wrongful  act  entirely  outside  the  scope  of  the  employ- 
ment. The  statute  does  not  provide  an  insurance  for  the  workman  against 
every  accident  happening  to  him  while  he  is  engaged  in  the  employment  of  his 
master,  but  only  against  accidents  arising  out  of  and  in  the  course  of  that 
employment.  *  *  *  As  a  matter  of  law,  it  cannot  be  said  that  an  acci- 
dent caused  to  a  workman  while  engaged  in  his  work  by  a  fellow  workman's 
doing  a  wrongful  act  entirely  outside  the  scope  of  his  employment  is  an  ac- 


§  121  workmen's  compensation  442 

where  a  workman's  hand  was  crushed  when  he  attempted,  while 
engaged  in  operating  a  triphammer,  to  remove  a  tin  can  placed  on 

cident  arising  out  of  and  in  the  course  of  the  employment.  For  these  rea- 
sons I  think  the  appeal  must  be  allowed."  Mathews,  L.  J.,  observed  at  page 
182:  "The  Act  gives  compensation  in  respect  of  accidents  'arising  out  of  and 
in  the  course  of  the  employment.'  If  the  words  had  been  merely  'arising  in 
the  course  of  the  employment,'  possibly  the  result  might  have  been  different ; 
but  we  have  to  deal  with  the  additional  words  'out  of,'  which  we  must  sup- 
pose to  have  been  introduced  by  the  Legislature  for  some  reason."  And  Coz- 
ens-Hardy,  L.  J.,  said  at  page  1S3:  "I  think  that  some  meaning  must  be  given 
to  the  words  'out  of  in  the  section.  They  appear  to  point  to  accidents  aris- 
ing from  such  causes  as  the  negligence  of  fellow  workmen  in  the  course  of 
the  employment,  or  some  natural  cause  incidental  to  the  character  of  a  busi- 
ness. An  accident  arising  out  of  the  dangerous  nature  of  a  business  carried 
on,  and  not  involving  any  human  agency,  such,  for  instance,  as  spontaneous 
combustion  of  some  material,  might  be  said  to  arise  out  of  the  employment. 
But  I  do  not  think  that  an  accident  caused  by  the  tortious  act  of  a  fellow 
workman  having  no  relation  whatever  to  the  employment  can  be  said  to 
arise  out  of  the  employment."  In  Wrigley  v.  Nasmyth,  Wilson  &  Co.,  Work- 
men's Compensation  Reports  (England)  1913,  p.  145,  it  was  held  that  where  a 
turner  while  larking  with  another  turner  was  knocked  into  a  lathe,  thereby 
injuring  himself,  the  accident  did  not  arise  "out  of  and  in  the  course  of  the 
employment"  within  section  1,  subdivision  1,  of  the  Workmen's  Compensation 
Act,  1906.  In  Hillis  v.  Shaw,  Id.  p.  744,  it  was  said:  "A  domestic  servant 
whilst  in  the  course  of  her  employment  was  accidentally  shot  and  injured  by 
a  farm  laborer,  who  was  carrying  a  gun  from  the  house  to  the  fields,  where 
it  was  required  by  the  employer  for  the  purpose  of  shooting  crows.  In  reply 
to  the  question,  'Did  he  present  it  at  you  in  a  joke?'  put  by  the  county  court 
judge,  the  injured  servant  stated:  'He  might  have  pointed  it  at  me;  it  was 
not  intended.'  Held,  that  the  evidence  given  by  the  servant  herself  was  suf- 
ficient to  justify  the  conclusion  that  the  injury  was  caused  by  the  larking  or 
fooling  of  the  laborer;  and  that  therefore  this  was  not  an  accident  arising 
out  of  the  employment  within  the  meaning  of  section  1,  subdivision  1,  of  the 
Workmen's  Compensation  Act,  1906." 

The  injury  did  not  arise  out  of  the  employment,  where  an  employe  was  in- 
jured from  falling  while  carrying  a  filled  bucket  down  a  flight  of  stairs,  due  to 
a  coemploye's  taking  advantage  of  his  peculiar  susceptibility  of  being  tickled 
(Coronado  Beach  Co.  v.  Pillsbury  [Cal.]  158  Pac.  218);  where  a  workman's 
eye  was  destroyed  from  being  struck  by  a  spring  ejected  playfully  by  a  co- 
employ§  from  a  trick  camera  (Fishering  v.  Pillsbury  [Cal.  1916]  158  Pac.  215) ; 
where  an  employ§  was  injured  from  hot  water  turned  on  him  by  a  fellow 
employe  as  a  practical  joke  (Yittorio  v.  California  Pottery  Co.,  3  Cal.  I.  A. 
C.  Dec.  26) ;   where  a  workman  fell  and  was  permanently  crippled  as  a  result 


443  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    121 

the  lower  die  by  a  bystander,  his  injury  arose  out  of  his  employ- 
ment, though  the  bystander  placed  the  can  on  the  die  for  fun  in 

of  being  hoisted  on  a  crane  by  bis  fellow  workmen  as  a  practical  joke  (Fitz- 
gerald V.  Clarke  &  Son  [1909]  1  B.  W.  C.  C.  197,  C.  A.) ;  where  a  workman's 
injury  was  due  to  fellow  workmen,  who  stumbled  into  him  while  indulging 
in  horseplay  (English  Act  1897 ;  Falconer  v.  Loudon  &  Glasgow  Engineering 
&  Iron  Shipbuilding  Co.,  Ltd.  [1901]  3  F.  564,  Ct.  of  Sess.) ;  where  a  work- 
man injured  himself  while  rescuing  a  fellow  workman  who  had  become  involv- 
ed in  danger  as  a  result  of  horseplay  (Mullen  v.  Stewart  &  Co.,  Ltd.  [1909] 
1  B.  W.  C.  C.  204,  Ct.  of  Sess.) ;  nor  where  a  housemaid  was  struck  in  the 
eye  and  injured  by  a  ball  which  was  thrown  at  her  playfully  by  a  nurse  un- 
der the  same  employer  (Wilson  v.  Laing  [1910]  2  B.  W.  O.  C.  118,  Ct.  of  Sess.). 

Injuries  resulting  from  inexcusable  horseplay  on  the  part  of  a  fellow  serv- 
ant who  was  using  a  compressed  air  hose  in  cleaning  his  clothes  after  work, 
and  inserted  the  hose  into  the  workman's  rectum,  did  not  arise  from  the  per- 
formance of  services  "growing  out  of  and  incidental  to  his  employment." 
(St.  1915,  §  2394—3,  subd.  2)  Federal  Rubber  Mfg.  Co.  v.  Havolic,  162  Wis. 
341,  156  N.  W.  143. 

In  Ely  V.  M.  S.  Brooks  &  Sons,  1  Conn.  Comp.  Dec.  390  (superior  court 
reversing  commissioner),  where  the  claimant  while  working  was  struck  in 
the  eye  by  a  piece  of  wire  thrown  by  a  girl  working  near  by,  in  a  spirit  of 
fun  and  to  attract  his  attention,  it  being  necessary  after  some  time  to  have 
the  eye  removed,  it  was  held  the  injury  did  not  arise  out  of  the  employment. 
In  Carrigan  v.  Winchester  Repeating  Arms  Co.,  1  Conn.  Comp.  Dec.  327  (af- 
firmed by  the  superior  court  on  appeal),  where  deceased  and  a  fellow  work- 
man were  working  near  each  other  sorting  scrap  metal  with  pointed  sticks, 
and  the  fellow  workman,  being  hit  by  a  bullet  thrown  by  some  one  in  a  spirit 
of  fun,  made  at  the  deceased  with  his  stick,  which  was  run  through  deceas- 
ed's wrist  when  he  threw  up  his  arm  to  parry  the  thrust,  it  was  held  such 
accident  did  not  arise  out  of  the  employment,  though  it  did  occur  in  the 
course  of  the  employment.  But  in  Grifiin  v.  A.  Roberson  &  Sons,  The  Bul- 
letin, N.  Y.,  vol.  1,  No.  10,  p.  18,  compensation  was  awarded,  though  it  was  not 
clear  whether  the  employe  fell  as  the  result  of  the  work  he  was  doing,  or  in 
trying  to  ward  off  some  foolish  action  of  a  coemploy^,  where  it  appeared  that 
whatever  was  done  was  done  while  he  was  at  work.  And  in  Grandfield  v. 
Bradley  Smith  Co.,  1  Conn.  Comp.  Dec.  479,  where  a  girl,  requiring  an 
empty  box  for  her  work,  which  should  have  been  supplied  her  by  a  boy 
hired  for  that  purpose,  went  to  get  one  from  another  boy,  who  supplied  an- 
other table,  and  was  resisted  by  him  in  a  spirit  of  fun,  and  injured,  it  was 
held  the  injury  arose  out  of  her  employment.  This  case  was  distinguished 
from  other  cases  of  play  by  the  fact  that  the  claimant  was  not  engaged  in 
play,  but  was  in  the  performance  of  her  duties. 


§  122  workmen's  compensation  444 

wliich  the  injured  workman  toolc  no  part.^"  An  injury  to  the  eye 
did  not  arise  out  of  the  employment  where  the  employe  while  in 
the  toilet  felt  something  strike  her  arm,  and  looked  through  a 
crack  to  see  were  the  article  had  come  from,  whereupon  a  girl  in 
the  adjoining  toilet  thrust  some  scissors  through  the  crack  into  her 
eye.^^ 

§  122.     Area  of  duty — Absence — Entry  and  exit 

A  distinction  must  be  drawn  between  the  doing  of  a  thing  reck- 
lessly or  negligently  which  the  workman  is  employed  to  do  and 
the  doing  of  a  thing  altogether  outside  and  unconnected  with  his 
employment.  A  peril  which  arises  from  the  negligent  or  reckless 
manner  in  which  an  employe  does  the  work  he  is  employed  to  do 
may  well  be  held  to  be  a  risk  incidental  to  the  employment.  Oth- 
erwise in  the  other  case.^-  As  said  by  Judge  Holt,  of  the  Minnesota 
Supreme  Court,  in  a  recent  opinion :  "When  a  servant  undertakes 
in  the  course  of  his  employment,  during  the  proper  hours  therefor, 
and  in  the  proper  place,  to  do  something  in  the  furtherance  of  his 
master's  business,  and  meets  with  accidental  injury  therein,  the 
trial  court's  finding  that  the  accident  arose  out  of  and  in  the  course 

2  0  (Wk.  Comp.  Act,  §  1)  Knopp  v.  American  Car  &  Foundry  Co.,  186  111. 
App.  605. 

21  De  Fillipis  v.  Falkenberg,  170  App.  Div.  153,  155  N.  Y.   Supp.  761. 

2  2  Barnes  v.  Nunnery  Colliery  Co.,  Ltd.  (1911)  4  B.  W,  C.  C.  43,  C.  A.,  and 
(1912)  5  B.  W.  O.  C.  195,  H.  L. 

A  workman  who,  on  being  instructed  by  a  subforeman  to  come  down  off  a 
roof,  wbere  be  was  working,  for  lunch,  descended  by  means  of  a  loose  rope 
extending  over  the  edge  of  the  roof,  the  end  of  which  he  directed  a  fellow 
workman  to  hold  for  him,  instead  of  using  a  ladder  securely  fastened  to  the 
side  of  the  building,  received  a  "personal  injury  arising  out  of  his  employ- 
ment" (Clem  V.  Chalmers  Motor  Co.,  178  Mich.  340,  144  N.  W.  SIS,  L.  R.  A. 
1916A,  352) ;  but  where  one  employed  in  the  construction  of  a  railroad  was 
ordered  by  the  fire  warden  to  assist  in  extinguishing  a  forest  fire,  as  au- 
thorized by  statute,  an  injury  received  while  he  was  so  working  did  not 
arise  out  of  his  employment.  Kenuelly  v.  Stearns  Salt  &  Lumber  Co.  (Mich. 
1916)  157  N.  W.  378. 


445  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUE  §    122 

of  employment  should  not  be  disturbed,  unless  it  is  clear  that  the 
ordinary  servant,  in  the  same  situation,  would  have  no  reasonable 
justification  for  believing  that  what  he  undertook  to  do  when  in- 
jured was  within  the  scope  of  his  implied  duties."  ^^ 

It  is  a  controlling  factor  in  determining  whether  an  injury  arose 
out  of  the  employment  whether  the  employe  was  within  the  area  of 
his  duty.  For  example,  the  accident  arose  out  of  the  employment 
where  a  delivery  boy  was  injured  from  being  thrown  from  a  bicycle 
after  he  had  called  at  his  home  and  taken  lunch  and  while  he  was 
on  his  way  to  make  a  delivery,-*  where  the  driver  of  an  express 
motor  truck,  within  the  scope  of  his  employment,  was  crossing  the 
street  on  foot  to  deliver  a  package,  and  was  struck  and  killed  by 
an  automobile  while  so  doing,-^  where  a  civil  engineer  sent  to  sur- 
vey a  quarry  and  bring  his  notes  back  to  the  home  office  for  inspec- 
tion and  consultation  was  drowned  on  the  wrecking  of  the  steam- 
ship while  he  was  returning,-*'  where  a  shipmaster  who  went  ashore 
to  pay  a  labourer's  wages  at  a  public  house,  at  which  he  remained 
two  hours,  on  his  return,  quite  sober,  fell  from  the  dock  and  was 
drowned,-^  but  not  where  the  employe  fell  and  was  injured  dur- 
ing the  noon  hour,  while  racing  with  other  employes,^^  where  a 
workman  after  his  day's  work  cutting  ice  put  up  his  tools,  and 
started  home  by  a  short  cut  across  the  pond  instead  of  by  the 
public  highway,  and  while  crossing  the  pond  slipped  and  fell,-^ 
where  a  workman  was  injured  while  stepping  ofif  a  car  on  his  way 
to  work,  about  two  hundred  feet  from  where  his  work  was,  and  be- 

2  3  state  Y.  District  Court,  129  Slinn.  176,  151  N.  W.  912. 

24  (Wk.  Comp.  Act,  pt.  2,  §  1)  Beaiidry  v.  Watkins  (Micb.)  158  N.  W.  16. 

25  Miller  v.  Taylor   (Snp.)  159  N.  Y.  Supp.  999. 

2  0  Hutchinson  v.  Pacific  Engineering  &  Construction  Co.,  2  Cal.  I.  A.  C.  Dec. 
600. 

27  Jones  V.  Ship  Alice  and  Eliza  (Owners  of),  (1910)  3  B.  W.  C.  C.  495,  C.  A. 

2  8  Thompson  v.  Employers'  Liability  Assur.  Corp.,  Ltd.,  2  Mass.  Wk.  Comp. 
Cases,  145  (decision  of  Com.  of  Arb.). 

29  Atkins  V.  Scranton,  1  Conn.  Comp.  Dec.  34. 


§  122  workmen's  compensation  446 

fore  time  for  him  to  begin  work,^''  where  a  typesetter  working  over- 
time late  at  night  went  out  for  lunch  by  an  unusual  way,  over  a 
freight  elevator  through  a  rear  door  used  only  to  admit  freight,  and 
on  returning  stepped  into  an  open  space  between  the  elevator  and 
the  street,^^  where  a  buyer  and  department  manager,  while  in  a 
bathroom  of  a  hotel  during  a  business  trip,  became  faint  and  un- 
conscious and  fell  to  the  floor,  striking  her  face  and  sustaining  an 
injury  thereby,^^  nor  where  a  workman  visited  a  building  which 
his  employer  was  constructing,  for  purposes  of  his  own  at  a  time 
when  he  was  not  engaged  in  doing  any  of  his  employer's  work, 
and  was  injured. ^^  A  fireman  employed  upon  continuous  duty  day 
and  night  is  not  acting  in  the  course  of  his  employment  while  at 
home  or  going  to  and  from  meals  at  his  home  unless  a  fire  alarm 
should  come  in  and  he  should  start  to  a  fire.  In  the  absence  of 
such  fire  alarm,  he  is  acting  in  the  course  of  his  employment  only 
when  he  is  about  the  fire  engine  house  or  at  a  fire  or  otherwise  dis- 
charging duties  connected  with  his  employment.^* 

It  does  not  prevent  an  injury  from  arising  out  of  the  employment 
that  the  workman  had  no  express  authority  to  do  the  particular 
act,^^  that  he  was  not  acting  strictly  in  accordance  with  his  in- 

3  0  McWilliams  v.  Haskins,  1  Conn.  Comp.  Dec.  324. 

31  Wheatley  v.  Journal  Publishing  Co.,  1  Conn.  Comp.  Dec.  110. 

3  2  Jacobs  V.  Davis-Sclionwasser  Co.,  2  Cal.  I.  A.  C.  Dec.  1013. 

3  3  Lynn  v.  Employers'  Liab.  Assur.  Corp.  Ltd.,  2  Mass.  Wk.  Comp,  Cases, 
507  (decision  of  Com.  of  Arb.,  atiirmed  by  Indus.  Ace.  Bd.). 

3  4  Perry  v.  City  of  San  Jose,  1  Cal.  I.  A.  C.  Dec.  537.  Where  an  employe 
is  hired  to  be  upon  continuous  service  day  and  night  as  a  fireman,  it  does  not 
follow  that  every  accident  received  in  the  course  of  the  24  hours  arises  out  of 
the  employment.  If  he  were  injured  by  stepping  upon  his  rake  while  taking 
care  of  his  lawn,  it  would  not  arise  out  of  his  employment  as  fireman. 
Where  he  borrows  a  horse  to  ride  to  his  home  for  a  meal,  and  is  injured  by 
the  horse  slipping  and  falling  in  coming  into  the  yard  of  the  engine  house 
on  his  return  from  his  meal,  such  accident  does  not  arise  out  of  his  employ- 
ment, and  he  is  not  entitled  to  compensation  for  his  injury.    Id. 

35  Where  an  employ^  was  injured  from  attempting  to  form  an  unexploded 
dynamite  shell  into  a  key,  believing  the  shell  to  have  been  exploded,  and  he 


447  CIRCUMSTANCES   UNDER  WHICH   COMFENSATION  DUE  §    122 

structions,^®  that  he  was  working  on  a  holiday ,^^  or  that  he  has 
formed  an  unexecuted  intent  to  abandon  his  employer's  business,^^ 
nor  does  it  prevent  an  injury  from  being  within  the  area  of  the 
employe's  duties  that  at  the  time  thereof  he  is  attending  on  his 
personal  necessities,^^  but  the  rule  is  otherwise  where  he  has  un- 

needed  such  a  key  to  perform  his  duties,  the  injury  was  due  to  accident 
arising  out  of  his  employment,  though  he  had  no  particular  authority  to 
make  the  key.  State  ex  rel.  Duluth  Brewing  &  Malting  Co.  v.  District  Court 
(1915)  129  Minn.  176,  151  N.  W.  912. 

In  Loveland  v.  Parish  of  St.  Thomas  Church,  1  Conn.  Comp.  Dec.  14,  it 
was  held  that  a  church  sexton,  part  of  whose  admitted  duties  was  to  preserve 
order  on  the  church  premises,  was  injured  by  stumbling  over  a  wheelbarrow 
while  going  to  stop  a  fight  between  two  boys  on  the  grounds,  he  sustained  an 
injury  arising  out  of  his  employment. 

If  it  is  the  duty  and  the  custom  of  an  employe  to  do  whatever  is  found 
necessary  to  be  done  in  a  shop,  and  he  is  injured  in  the  performance  of  his 
work,  he  is  entitled  to  compensation,  as  the  accident  arose  out  of  his  em- 
ployment.   Whaley  v.  Hudson,  Bulletin  No.  1,  111.,  p.  1S6. 

Where  an  employe,  hired  to  assist  the  weighmaster,  held  horses  which  had 
been  weighed  while  the  owner  went  to  settle  with  the  weighmaster,  he  hav- 
ing performed  such  services  before  under  the  direction  of  the  weighmaster, 
such  service  was  incidental  to  his  employment.  Manis  v.  City  of  Milwaukee, 
Bui.  Wis.  Indus.  Com.  1912-1.3,  p.  29. 

36  That  a  school  principal,  killed  from  being  struck  by  a  basket  ball  on  the 
school  ground,  while  he  was  supervising  some  test  exercises  during  school 
hours,  should,  under  the  rules  of  the  school  board,  have  held  the  tests  at  re- 
cess, did  not  preclude  him  from  being  engaged  in  a  service  incidental  to  and 
growing  out  of  his  employment.  Milwaukee  v.  Indus.  Com.,  160  Wis.  23S, 
151  N.  W.  247. 

3  7  In  Reese  v.  Yale  &  Towne  Mfg.  Co.,  1  Conn.  Comp.  Dec.  154,  it  was  held 
that,  where  an  iron  bar  fell  on  the  workman's  foot  while  he  was  taking  an 
inventory  for  his  employer  on  a  holiday,  he  sustained  an  accident  arising 
out  of  his  employment. 

3  8  Where  a  workman  was  killed  by  the  running  away  of  a  horse  which  he 
was  taking  to  water  in  the  performance  of  his  duties,  he  was  injured  while 
acting  within  the  scope  of  his  employment,  though  he  had  formed  an  unexe- 
cuted intention  to  abandon  his  master's  business  after  performing  this  duty 
&nd  to  take  the  horse  for  his  own  convenience  on  a  journey  of  his  own. 
Pigeon  V.  Employers'  Liab.  Assur,  Corp.,  216  Mass.  51,  102  N.  E.  932,  Ann. 
Cas.  1915 A,  737. 

39  Where  a  railroad  trackman  was  run  down  by  a  train  while  standing  on 
the  track  getting  a  drink,  with  his  back  to  the  approaching  train,  the  acci- 


§  122  workmen's  compensation       ~  448 

necessarily  left  his  work  for  his  own  purposes,  or  purposes  not 
connected  with  the  employment.*"  An  injury  occurring  during  his 
absence  from  this  area  cannot  be  said  to  be  due  to  the  employ- 
dent  arose  out  of  his  employment.  Solle  v.  N.  Y.,  N.  H.  &  H.  R.  R.,  4  N.  Y.  St. 
Dep.  Rep.  39.3.  Also,  where  a  laborer  on  a  railroad  culvert  was  fatally  injured 
while  crossing  the  track  to  go  to  dinner  in  a  bunk  car  at  the  call  of  his 
foreman,  the  accident  arose  out  of  his  employment.  Carini  v.  Nickel  Plate 
R.  R.  Co.,  4  N.  Y.  St.  Dep.  Rep.  42.3. 

The  injury  arose  out  of  the  employment  where  a  housekeeper  of  a  hotel, 
in  which  she  resided,  whose  duty  it  was  to  be  available  at  all  hours,  but  who 
commenced  active  work  at  8  a.  m.,  was  injured  at  7  a.  m.  while  going  for 
hot  water  for  toilet  purposes  (Leonard  v.  Fremont  Hotel,  2  Cal.  I.  A.  C.  Dec. 
90S),  and  where  an  engineer,  employed  to  install  machinery  on  a  dredger, 
was  required  by  his  employers  for  their  benefit  to  live  on  board,  and  while 
preparing  his  breakfast  was  injured  by  the  explosion  of  a  gas  stove  (McLean 
V.  Shields,  2  Cal.  I.  A.  C.  Dec.  1046). 

40  The  evidence  showed  that  the  employ^,  a  clerk,  received  a  fatal  injury 
in  the  building  in  which  the  office  of  the  subscriber  was  located.  She  left 
her  place  of  employment  at  lunch  time,  fully  clothed  for  the  street,  and 
while  attempting  to  get  off  the  elevator  at  the  ninth  floor  received  an  injury 
which  caused  her  death.  She  was  on  the  way  to  the  office  of  a  friend  on  that 
floor  for  the  purpose  of  making  a  personal  delivery  of  a  Christmas  gift,  this 
errand  having  no  connection  with  her  employment.  It  was  held  the  injury 
did  not  arise  out  of  the  employment.  Ross  v.  Casualty  Co.  of  America,  2 
Mass.  Wk.  Comp.  Cases,  666  (decision  of  Com.  of  Arb.). 

Where  a  farm  laborer,  after  taking  up  his  employment  and  having  dinner, 
was  injured  by  accident  while  driving  to  the  station  after  his  bos,  he  having 
been  allowed,  according  to  custom,  to  take  his  employer's  horse  and  cart  for 
the  purpose,  the  accident  did  not  arise  out  of  his  employment.  Whitfield  v. 
Lambert  (1915)  8  B.  W.  C.  C.  91,  C.  A. 

In  Cavagnero  v.  American  Mills  Co.,  1  Conn.  Comp.  Dec.  163,  it  was  held, 
where  the  breaking  of  the  claimant's  leg  was  due  to  moving  toward  a  fellow 
employe  in  order  to  better  hear  some  remarks  on  politics  or  religion,  un- 
connected with  the  employment,  while  on  the  premises  during  his  noonday 
lunch  hour,  that  the  injury  did  not  arise  out  of  the  employment.  In  Cohen 
V.  Union  News  Co.,  1  Conn.  Comp.  Dec.  62,  it  was  held  that  where  a  news- 
boy running  on  certain  trains,  by  reason  of  missing  his  regular  train,  had 
two  hours  to  wait  at  a  station,  and  while  there  went  to  the  baggage  room, 
wholly  unconnected  with  his  business,  and  was  caught  between  a  safety  gate 
and  the  floor  of  an  ascending  elevator  he  was  trying  to  board,  the  injury  did 
not  arise  out  of  the  employment. 


449  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUE  §    122 

ment,"  though  the  wages  paid  him  cover  the  time  when  the  in- 
jury occurred/"  subject  to  the  qualification  that,  where  the  absence 

41  Where  a  laundry  driver  is  accustomed  for  his  own  convenience  to  work 
on  his  employer's  account  books  at  home  nights,  instead  of  working  on  them 
at  his  employer's  place  of  business,  where  desk  room  is  furnished,  he  can- 
not be  said  to  be  performing  services  growing  out  of  and  incidental  to  his 
employment  while  in  the  act  of  going  home  at  night  with  the  books.  Ogilvie 
V.  Egan,  1  Cal.  I.  A.  C.  Dec.  79. 

Accidents  not  arising  out  of  employment:  Where  a  longshoreman  finished 
his  work  for  his  employer  at  7  ©'clock  on  the  night  before  his  injury,  which 
occurred  while  he  was  crossing  railroad  tracks  the  next  morning  after  mak- 
ing an  unsuccessful  application  for  more  work.  Ganley  v.  Employers'  Liab. 
Assur.  Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  159  (decision  of  Com.  of  Arb.). 
England.  Where  a  postman  was  sent  for  a  postal  order  to  the  Hatton  Garden 
post  office,  and,  failing  to  obtain  one  there,  went  on  a  half  mile  farther  to  the 
general  post  office,  and  there  fell  and  injured  himself.  Smith  v.  Morrison 
(1912)  5  B.  W.  C.  C.  162,  C.  A.  Where  a  ship's  captain,  returning  from  a 
trip  to  a  hotel  ashore,  hailed  his  ship  from  the  quay  and  asked  for  a  boat, 
and  fell  into  the  water  and  was  drowned  before  the  boat  arrived,  it  not  being 
established  that  he  went  ashore  on  ship's  business.  Fletcher  v.  Owners  of 
S.  S.  Duchess  (1910)  .3  B.  W.  C.  C.  239,  C.  A.,  and  (1911)  4  B.  W.  C  C.  317, 
H.  L.  Where  a  ship's  steward,  after  a  trip  ashore,  was  seen  on  the  quay, 
but  was  not  observed  to  have  reached  the  gangway,  and  then  a  splash  was 
heard,  and  the  cry  of  "Man  overboard!"  and  he  was  taken  from  the  water 
dead.  Kitchenham  v.  Owners  of  S.  S.  Johannesburg  (1911)  4  B.  W.  C.  C.  91, 
C.  A.,  and  311,  H.  L.  Where  a  ship's  fireman,  returning  after  a  week-end 
absence  from  his  ship  with  permission,  was  injured  by  slipping  on  the  step:^ 
of  the  quay.  Kelly  v.  Owners  of  Foam  Queen  (1910)  3  B.  W.  0.  C.  113,  C.  A. 
Where  a  seaman,  on  his  way  back  from  leave  ashore,  fell  off  the  quay  at  a 
place  where  a  row  of  barrels  greatly  narrowed  the  passageway,  and  was 
drowned.  Craig  v.  Owners  of  S.  S.  Calabria  (1914)  7  B.  W.  C.  C.  932,  Ct.  of 
Sess.     Where  the  dead  body  of  the  engineer  of  a  steam  trawler  in  dry  dock 


4  2  The  injury  did  not  arise  out  of  the  employment  where  an  employe  did 
two  hours'  overtime  work,  then  was  ordered  to  go  home  to  supper  and  re- 
turn for  more  overtime  work,  the  time  in  the  interval  to  be  included  in  that 
for  which  he  was  paid  at  overtime  rates,  and  while  returning  after  supper 
to  the  employer's  factory  was  accidentally  killed  by  a  train  on  railroad 
tracks  outside  the  premises  (Leite  v.  Paraffine  Paint  Co.,  2  Cal.  I.  A.  C.  Dec. 
1022),  or  where  a  lumber  company's  employe  was  injured  while  assisting  a 
fire  warden  as  required  by  statute,  though  he  was  paid  his  regular  wages  by 
his  employer,  who  was  reimbursed  by  the  state  and  county  (Kennelly  v. 
Stearns  Salt  &  Lumber  Co.  [Mich.]  157  N.  W.  378). 
HoN.CoMP.— 29 


§122  workmen's  compensation  450 

is  legitimate,  as  where  it  is  with  leave,  the  area  of  duty  Includes 
the  reasonable  or  permitted  means  of  going  and  returning.*^     But 

was  found  in  the  dry  dock  some  time  after  he  had  gone  ashore  for  dinner. 
Gilbert  v.  Owners  of  the  Nizam  (1910)  3  B.  W.  C.  C.  455,  C.  A.  Where  a  ship's 
fireman,  who  bought  his  own  provisions,  but  was  under  no  contract  obligation 
to  do  so,  was  drowned  when  he  fell  from  the  pier  on  his  return  from  a  ship 
ashore  after  some  provisions.  Parker  v.  Owners  of  S.  S.  Black  Rock  (1914) 
7  B.  W.  C.  C.  152,  C.  A.  Where  a  ship's  steward,  going  ashore  to  buy  stores 
for  the  ship,  gained  permission  to  visit  his  home,  and  went  there  for  break- 
fast before  going  to  the  stores,  and  was  injured  on  his  way  from  his  home 
to  the  stores.  Lee  v.  Owners  of  S.  S.  St.  George  (1914)  7  B.  W.  C.  C.  85,  C.  A. 
Where  a  boiler  scaler,  after  a  trip  ashore  for  dinner,  stopped  on  his  return 
to  the  quay  to  watch  repair  work  being  done  to  the  ship,  and  was  killed  by 
a  rope  which  snapped  and  struck  him  while  he  was  standing  in  an  area 
roped  off  and  marked  dangerous.  Murray  v.  Allan  Bros.  &  Co.,  Ltd.  (1913) 
6  B.  W.  C.  C.  215,  C.  A.  Where  a  ship's  steward,  returning  late  at  night, 
found  that  his  ship  had  been  moved  during  his  absence  on  leave  for  pur- 
poses of  his  own,  and  was  struck  by  a  train  and  injured  while  making  his 
way  along  the  dock  side  toward  the  new  berth.  Biggart  v.  Owners  of  S.  S. 
Minnesota  (1912)  5  B.  W.  C.  C.  69,  C.  A.  Where  a  donkeyman,  returning  to 
ship,  was  fatally  injured  by  slipping  from  the  gangway,  but  there  was  no 
evidence  to  show  his  reason  for  going  ashore,  or  whether  or  not  he  had 
leave.  McDonald  v.  Owners  of  S.  S.  Banana  (1909)  1  B.  W.  C.  C  185,  C.  A. 
Where  a  sailor,  who  went  ashore  for  his  own  purposes,  returned  after  dark, 
and  tripped  on  the  gangway,  fell  off  into  the  water,  and  was  drowned. 
Ilyndman  v.  Craig  &  Co.  (1911)  4  B.  W.  C.  C.  438,  C.  A.  Where  a  discharged 
sailor,  at  the  end  of  his  voyage,  got  from  his  ship  onto  a  "dolphin,"  a  floating 
stage  forming  a  part  of  the  dock  premises,  and  fell  into  the  water  and  was 
drowned  while  passing  from  the  doljihin  to  the  quay.  Cook  v.  Owners  of 
S.  S.  Montreal  (1913)  6  B.  W.  C.  C.  220,  C.  A.  Where  a  ship's  engmeer,  re- 
turning from  a  trip  ashore  with  leave,  found  his  boat  missing,  and  tried 
to  get  out  to  his  ship  in  a  27-foot  lifeboat  without  any  oars,  paddling  with 
the  rudder,  and  was  blown  out  to  sea  and  drowned.  Halvorsen  v.  Salvesen 
(1912)  5  B.  W.  C.  C.  519,  Ct.  of  Sess.  Where  a  workman  on  a  ship,  after 
going  ashore  contrary  to  orders,  was  further  disobedient  on  his  return  in 
trying  to  jump  aboard,  instead  of  using  the  gangway,  and,  falling  into  the 
water,  was  drowned.  Martin  v.  Fullerton  &  Co.  (1909)  1  B.  W.  C  C.  168,  Ct. 
of  Sess. 

43  Kearon  v.  Kearon  (1911)  4  B.  W.  C.  C.  435,  C.  A. 

Accidents  arising  out  of  employment:  Where  an  employe  was  hired  as  a 
woodchopper  upon  timber  lands  belonging  to  the  defendant,  and  was  entitled 
to  board  and  room  at  a  camp  provided  by  the  employer,  and  received  an  in- 


451  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    122 

it  is  essential  that  the  risk  be  due  to  the  means  of  access,  and  not 
to  something-  wholly  unconnected  with  the  employment,  such  as 
the  drunkenness  of  the  workman.**    Ordinarily  an  employe  injured 

jury  due  to  a  fall  while  retuniiug  from  the  place  where  he  had  been  at  work 
to  his  employer's  cookhouse  for  supper,  and  it  appeared  that  the  day's  work 
was  agreed  to  commence  when  the  choppers  left  the  cookhouse  in  the  morn- 
ing, and  to  close  when  they  reached  the  cookhouse  in  the  evening.  Saari  v. 
Pacific  Lumber  Co.,  2  Cal.  I.  A.  C.  Dee.  1S2.  Where  a  woodsman,  who  was 
supplied  with  his  board  and  lodging  at  a  lumber  camp  situated  a  mile  from 
the  place  of  his  labor,  and  had  to  go  to  and  from  his  work  one  evening,  slip- 
:)ed  and  fell  into  the  river  and  was  drowned.  Mendocino  Lumber  Co.  v. 
Southwestern  Surety  Insur.  Co.,  2  Cal.  I.  A.  C.  Dec.  755.  England.  Where 
a  seaman,  on  his  return  after  a  legitimate  trip  ashore  for  purposes  of  his 
own,  fell  from  the  ladder,  w^hich  was  the  only  means  of  access  to  his  ship, 
and  was  drowned.  Moore  v.  Manchester  Liners,  Ltd.  (1910)  3  B.  W.  C.  C. 
.'127,  H.  L.,  and  2  B.  W.  C.  C.  87,  C.  A.  Where  a  seaman,  after  being  ashore 
for  his  own  purposes,  was  returning  to  his  ship  by  means  of  a  gangway, 
which  connected  it  with  another  vessel  lying  between  it  and  the  quay,  and 
was  thrown  into  the  water  by  the  slipping  of  the  gangway,  and  drowned. 
Leach  v.  Oakley,  Street  &  Co.  (1911)  4  B.  W.  C.  C.  91,  C.  A.  Where  a  ship's 
steward,  after  a  trip  ashore  with  leave,  returned  to  the  ship  by  the  cargo 
skid,  which  the  crew  often  used,  contrary  to  orders,  instead  of  by  the  gang- 
way, and  in  stepping  from  the  skid  to  the  dock  fell  into  the  hold,  fatally 
injuring  himself.  liobertson  v.  Allan  Brothers  &  Co.,  Ltd.  (1909)  1  B.  W. 
G.  C.  172,  C.  A.  Where  a  boatman  met  with  an  accident  in  jumping  from  a 
ketch  he  had  been  piloting  into  his  own  small  boat.  Barbeary  v.  Chugg 
(1915)  8  B.  W.  C.  C.  37,  C.  A.  Where  a  seaman,  going  home  from  his  ship, 
crossed  a  plank  leading  to  a  ladder  fixed  against  the  side  of  the  quay,  and 
then,  while  mounting  the  ladder,  fell  and  was  injured.  Webber  v.  Wans- 
brough  Paper  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  795,  H.  L.,  and  (1913)  6  B.  W. 
C.  C.  583,  C.  A.  Where  a  seaman,  returning  to  his  ship,  after  crossing  the 
gangway,  was  standing  with  one  foot  on  the  rail  of  the  ship  and  the  other 
on  a  ladder  from  the  rail  to  the  deck,  and  lost  his  balance,  fell  into  the  wa- 
ter, and  was  drowned.  Canavan  v.  Owners  of  S.  S.  Universal  (1910)  3  B.  W. 
C.  C.  355,  C.  A.  Where  a  seaman,  who  had  been  ashore  for  his  own  pur- 
poses, on  his  return  found  no  gangway,  and  the  ladder  commonly  used  was 
missing,  so,  after  hailing  and  getting  no  answer,  he  jumped  aboard,  and  was 
injured.    Kearon  v.  Kearon  (1911)  4  B.  W.  C.  C.  435,  C.  A. 

4  4  The  accident  did  not  arise  out  of  the  employment  where  a  sailor  be- 
came intoxicated  while  ashore  with  leave,  and  in  returning,  while  mounting 
the  gangway,  was  fatally  injured  by  a  fall  (Nash  v.  Owners  of  S.  S.  Ran- 
gatira  [1914]  7  B.  W.  C.  C.  590,  C.  A.) ;  or  where  a  sailor  returned  to  his 


§  122  workmen's  compensation  452 

on  the  premises  of  the  employer  in  going  to  or  from  work  is  enti- 
tled to  compensation  for  such  injuries.*^  However,  where  he  is  in- 
jured while  entering  the  premises  of  his  employer  to  go  to  work, 
but  before  he  has  dismounted  from  a  private  conveyance  carrying 
him  to  his  work,  he  cannot  be  said  to  have  entered  upon  the  per- 
formance of  his  duties  or  any  task  incidental  thereto  at  the  time 
of  his  injury,  even  though  the  accident  occurs  upon  the  employ- 
er's premises.*®    Where,  however,  the  employe  lives  upon  the  prem- 

sliip  iu  a  state  of  hopeless  intoxication,  was  thrown  from  the  quay  to  the 
deck  as  the  ship  was  moving  away,  and,  after  getting  up,  staggered  around 
and  then  fell  over  the  side  of  the  ship  and  was  drowned  (Frith  v.  Owners  of 
S.  S.  Louisianian  [1912]  5  B.  W.  C.  C.  410,  C.  A.) 

45  Where  a  miner,  at  the  end  of  his  day's  work,  changed  his  clothes,  and, 
still  carrying  a  miner's  lamp,  started  towards  the  bottom  of  the  shaft,  with 
Ihe  intention  of  ascending  to  the  top  of  the  mine,  and  about  200  feet  from 
the  room  where  he  had  been  at  work  and  about  one-half  mile  from  the  bot- 
tom of  the  shaft  one  of  his  eyes  was  put  out  by  coming  in  contact  with  a 
piece  of  slate  hanging  from  the  roof,  it  was  held  his  duties  had  not  ended 
until  he  left  the  mine,  and  that  the  accident  arose  out  of  his  employment. 
Sedlock  V.  Carr  Coal  Mining  &  Mfg.  Co.,  OS  Kan.  6S0,  159  Pac.  9. 

A  roadmaster  of  a  railroad  requested  an  interpreter  to  get  ten  men,  such 
as  he  had  secured  before,  and  bring  them  to  a  certain  siding  for  the  purpose 
of  going  to  work,  at  the  same  time  giving  him  a  pass  for  himself  and  ten  men, 
from  the  place  where  they  were  to  be  secured  to  the  place  of  work.  After 
arriving  at  the  place  of  work,  one  of  the  men,  while  removing  his  baggage, 
was  struck  by  a  train  and  killed.  The  evidence  was  held  by  the  Board  to 
be  suflicient  to  justify  the  conclusion  that  the  deceased  was  in  the  employ  of 
the  railroad  company,  and  that  the  injury  arose  out  of  the  employment. 
Patterson  v.  Bloomington,  D.  &  C.  E.  Co.,  Bulletin  No.  1,  111.,  p.  101. 

46  Perry  v.  City  of  San  Jose,  1  Cal.  I.  A.  C.  Dec.  537.  The  general  rule  is 
that  employes  are  under  the  protection  of  the  Compensation  Act  when  they 
reach  their  place  of  employment  on  the  premises  of  the  employer,  and  that 
they  remain  under  the  protection  of  the  Act  only  until  they  leave  the  prem- 
ises of  the  employer  to  return  to  their  homes.  It  is  also  a  general  rule  that 
accidents  to  employes  while  going  to  and  returning  from  their  work  are  not 
compensable.     Saari  v.  Pacific  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  1S2. 

Where  a  laborer  on  a  highway  was  brought  to  his  place  of  employment  by 
a  passing  automobile  as  a  friendly  act,  and  while  in  the  act  of  alighting, 
and  before  he  had  presented  himself  ready  for  work,  lost  his  balance  and  fell, 
the  injury  did  not  arise  out  of  his  employment.  Beatty  v.  County  of  Los 
Angeles,  2  Cal.  I.  A.  C.  Dec.  lOoS. 


453  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION   DUE  §    122 

ises  of  the  employer,  and  is  not  injured  upon  a  public  highway 
while  going  to  and  from  work,  the  risk  of  accident  while  so  going 
and  coming  is  a  risk  of  the  employment.*^  Where  the  injury  has 
arisen  through  the  workmen  using  special  modes  of  access  pro- 
vided by  their  employers  to  enable  them  to  go  to  or  come  from 
the  actual  place  of  employment,  the  courts  have  uniformly  held 
that  it  arose  out  of  the  employment.*^  But  where  an  employe,  in 
returning  to  his  ship,  does  not  use  the  safe  means  of  access  provided 
by  his  employer,  but  of  his  own  volition  uses  a  means  of  access 
that  is  both  unreasonable  and  unsafe,  he  does  so  at  his  own  risk. 
Where,  however,  because  of  drowsiness  or  absent-mindedness,  and 
not  intentionally,  he  misses  the  gangway  provided  by  the  em- 
ployer, and  by  mistake  climbs  up  a  ladder  left  leaning  against  the 
ship  by  painters,  which  ladder  does  not  reach  to  the  rail  or  any 
other  opening  in  the  ship,  and  falls,  his  injuries  arise  out  of  the 
employment.*^ 

*7  Saari  v.  Pacific  Lumber  Co.,  supra. 

48  Moore  v.  Manchester  Liners,  Ltd.  (1910)  3  B.  W.  C.  C.  527,  H.  L.,  and  2 
B.  W.  C.  C.  87,  C.  A.  The  employer  is  liable  under  the  Act  for  the  condition 
of  the  ways  provided  for  the  ingress  and  egress  of  employes.  Wheeler  v.  Con- 
toocook  Mills  Corp.  (1915)  77  N.  H.  551,  94  Atl.  265 ;  Boody  v.  Company,  77  N. 
H.  208,  90  Atl.  859,  L.  R.  A.  1916A,  10,  Ann.  Cas.  1914D,  1280. 

Where  an  employe,  who  had  gained  permission  to  ride  in  ]jis  employer's 
elevator,  was  thrown  violently  against  the  opposite  wall  of  a  hall,  in  getting 
off,  which  accident  caused  a  strangulated  hernia,  he  sustained  an  injury 
arising  out  of  his  employment.  Herrick  v.  Employers'  Liab.  Assur.  Co.,  Ltd., 
2  Mass.  Wk.  Comp.  Cases,  122  (Dec.  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace. 
•  Bd.,  also  by  Sup.  Jud.  Ct.  217  Mass.  432,  104  N.  E.  432).  Where  a  certain 
stairway  was  the  only  means  of  exit  to  the  street  from  the  third  story,  where 
an  employe  worked,  and  she  was  injured  while  on  her  way  down  the  stairs 
on  her  way  to  luncheon,  the  injury  arose  out  of  her  employment.  Sundine  v. 
London  Guarantee  &  Accident  Co.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  833  (deci- 
sion of  Indus.  Ace.  Bd.,  affirmed  by  Sup.  Jud.  Ct.,  218  Mass.  1,  105  N.  E.  433, 
L.  R.  A.  1916A,  318). 

In  Barnard  v.  H.  Garber  &  Co.,  1  Conn.  Comp.  Dec.  572,  where  an  aged 
workman  fell  on  the  steps  of  his  employer's  establishment  when  entering  to 
begin  work  in  the  morning,  on  account  of  their  slippery  condition,  it  was 
held  the  injury  arose  out  of  the  employment. 

4  9  Boucher  v.  Olson  &  Mahony  Steamship  Co.,  1  Cal.  I.  A.  C.  Dec.  248. 


§  123  workmen's  compensation  454 

§  123.     Incurring  of  additional  risks 

While  a  workman  has  no  right  by  his  own  conduct  for  his  own 
purposes  to  add  a  risk  which  is  not  incidental  to  the  employment/" 
and,  where  he  goes  beyond  his  rights  in  this  respect,  an  accident  re- 
sulting in  consequence  thereof  will  be  held  not  to  have  arisen  out 
of  his  employment,^^  particularly  where  he  acts  in  violation  of  ex- 

5  0  Revie  v.  Gumming  (1912)  5  B.  W.  C.  C.  4S3,  Ct  of  Sess. 

51  Where  employes  were  obliged  to  enter  their  place  of  employment  over  a 
railroad's  private  right  of  way  or  one  along  a  public  street,  but  the  latter 
was  the  safer,  although  causing  employes  a  longer  walk,  and  therefore  not 
customarily  used  by  them,  the  use  by  an  employ^  of  the  more  dangerous 
crossing  is  an  added  and  unnecessary  risk  not  incidental  to  the  employment, 
and  an  accident  resulting  therefrom  does  not  arise  out  of  the  employment. 
Leite  v.  Paraffine  Paint  Co.,  2  Cal.  I.  A.  C.  Dec.  1022. 

Accidents  not  arising  out  of  employment:  Where  a  laborer,  whose  duties 
were  to  sack  coal  and  assist  the  driver  of  the  coal  wagon  in  the  unloading  on 
the  delivery  of  orders,  voluntarily  and  without  the  knowledge  of  the  employer 
and  during  the  absence  of  the  regular  driver,  took  upon  himself  the  delivery  of 
an  order.  Siri  v.  Arata  &  Co.,  2  Cal.  I.  A.  C.  Dec.  6-15.  Connecticut.  Where  a 
workman's  fall  was  caused  either  by  the  assault  of  his  foreman  or  by  his  at- 
tempting to  escape  a  real  or  supposed  assault,  which  was  due  solely  to  either 
the  workman's  serious  and  willful  misconduct  or  his  intoxication.  Cooper 
V.  New  Haven  Rigging  Co.,  1  Conn.  Comp.  Dec.  157.  Where  the  employ^ 
left  the  machine  where  he  was  working,  and  went  to  another  room  and  tried 
to  shape  a  piece  of  wood  needed  for  repairing  his  own  machine,  which  repair 
was  not  necessary,  and  was  injured  on  the  buzz  saw  while  so  engaged.  Duke 
v.  E.  Hortou  &  Son,  1  Conn.  Comp.  Dec.  673.  Where  the  claimant  was  injur- 
ed while  giving  a  coemploye  a  ride  on  a  truck  used  for  carrying  beams,  dur- 
ing the  noon  hour  and  after  she  had  finished  her  lunch,  being  allowed  to  eat 
lunch  on  the  premises  by  her  employer.  Socquet  v.  Connecticut  Mills  Co.,  1 
Conn.  Comp.  Dec.  653.  Where  a  clerk  was  injured  while  polishing  a  ring  on 
a  bufling  Avheel,  work  which  was  of  no  benefit  to  his  employer  and  was  wholly 
unconnected  with  his  duties.  Maynard  v.  New  London  Ship  &  Engine  Co., 
1  Conn.  Comp.  Dec.  47.  Wisconsin.  Where  a  conductor  on  a  street  car  ex- 
changed places  with  his  motorman  and  undertook  to  run  the  car  back  at  night, 
without  there  being  any  emergency  which  required  him  to  do  so,  and  died 
from  injuries  caused  by  the  car  jumping  the  track.  Neumann  v.  Milwaukee 
Electric  Ry.  &  Light  Co.,  Bui.  Wis.  Indus.  Com.  vol.  I,  p.  92.  England. 
Where  a  dock  laborer,  seeking  a  ride  to  the  dock  gates  on  his  way  to  dinner, 
tried  to  climb  into  a  train,  fell  and  was  injured  thereby.    Morrison  v.  Clyde 


455  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    123 

Navigation  Trustees  (1910)  2  B.  W.  C.  C.  09,  Ct.  of  Sess.  Wliere  a  brakeman 
employed  to  walk  behind  a  lorry  got  up  onto  the  lorry  to  talk  with  the  driver, 
and,  when  getting  down  to  apply  the  brakes,  fell,  and  was  injured.  Revie  v. 
Gumming  (1912)  5  B.  W.  O.  C.  483,  Ct.  of  Sess.  Where  a  builder's  foreman, 
hired  to  inspect  jobs,  left  his  inspecting  each  evening  in  ample  time  to  catch 
a  train,  which  enabled  him  to  report  before  6  o'clock,  and  on  one  occasion 
arrived  just  as  the  train  was  moving  away,  and  was  fatally  injured  by  a 
fall  when  he  attempted  to  board  it  while  in  motion.  Jibb  v.  Chadwick  &  Co. 
(1915)  8  B.  W.  C.  C.  152,  C.  A.  Where  a  farm  laborer,  after  finishing  his 
day's  work,  had  to  go  to  his  employer's  farm  two  miles  away  for  his  pay  and 
instruction,  and,  accepting  a  lift  from  the  driver  of  one  of  his  employer's 
carts,  was  thrown  out  and  injured.  Parker  v.  Pont  (1912)  5  B.  W.  O.  C.  45, 
C.  A.  Where  a  workman  was  Injured  while  crossing  the  metals  at  a  railway 
station,  instead  of  passing  over  the  footbridge.  Pritchard  v.  Torkington 
(1914)  7  B.  W.  C.  C.  719,  C.  A.  Where  a  canal  overseer  employed  by  a  rail- 
road company  took  a  short  cut  from  the  station  to  his  office,  going  down  the 
railroad  line,  instead  of  around  by  the  road,  and  was  killed  by  a  train.  Mc- 
Laren V.  Caledonian  Ry.  Co.  (1912)  5  B.  ^Y.  C.  C.  492,  Ct.  of  Sess.  Where  a 
craneman  in  charge  of  two  cranes  climbed  upon  a  third,  and  was  fatally  in- 
jured in  doing  so,  and  there  was  no  evidence  to  show  his  reason.  Millers  v. 
North  British  Locomotive  Co.,  Ltd.  (1910)  2  B.  W.  C.  C.  SO,  Ct.  of  Sess. 
Where  a  workman  was  drowned  while  swimming  across  a  river  between  two 
farms,  instead  of  going  across  the  bridge.  Guilfoyle  v.  Fennessy  (1913)  6  B. 
W.  C.  C.  453,  C.  A.  Where  a  workman  climbed  onto  a  hot-water  tank  in  a 
building,  although  he  was  not  allowed  to  do  so,  and  while  eating  his  supper 
there  fell  into  the  tank  through  an  opening  and  was  scalded  to  death.  Brice 
V.  Lloyd,  Ltd.  (1910)  2  B.  W.  C.  C.  26,  C.  A.  Where  a  workman,  for  his  own 
ease,  got  into  a  hoist,  which  was  well  lighted,  but  so  low  that  he  had  to  stoop 
to  get  in,  and  was  crushed  to  death  by  the  machinery.  Rose  v.  Morrison  & 
Mason,  Ltd.  (1911)  4  B.  W.  C.  C.  277,  C.  A.  Where  a  workman,  instead  of  go- 
ing to  a  water-closet,  went  into  an  inclosed  space  under  an  engine,  and  while 
there  scalded  his  foot  in  hot  water  escaping  from  the  engine.  Thomson  v. 
Flemington  Coal  Co.,  Ltd.  (1911)  4  B.  W.  C.  C.  406,  Ct.  of  Sess.  Where  steer- 
ing a  canal  boat  and  driving  the  horse  were  distinct  duties,  and  a  boatman 
told  a  driver  under  his  order  to  steer  in  place  of  another  boatman,  who  had 
gone  off,  and  the  driver  met  with  an  accident  and  was  drowned  while  steer- 
ing. Whelan  v.  Moore  (1910)  2  B.  W.  C.  C.  114,  C.  A.  Where  a  workman  was 
hired  to  stack  empty  flour  sacks  by  hand,  and  hoisted  sacks  to  the  top  of  a 
stack  by  means  of  a  rope  and  a  revolving  shaft,  and  was  injured.  Plumb 
V.  Cobden  Flour  Mills  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  1,  H.  L.,  and  (1913)  6 
B.  W.  C.  C.  245,  C.  A.  Where  a  collier,  traveling  from  work  in  a  train  pro- 
vided by  his  employers,  jumped  off  before  the  train  reached  the  platform, 
and  was  seriously  and  permanently  injured.  Price  v.  Tredegar  Iron  &  Coal 
Co.  (1914)  7  B.  W.  C.  C.  387,  C.  A.     Where  the  driver  of  a  motor  van,  find- 


§  123  workmen's  compensation  456 

press  rules,  warnings,  or  instructions,'^^  yet,  where  a  workman, 
while  performing  his  duties,  meets  with  an  accident  to  which  he  is 

ing  that,  because  of  a  worn-out  clutch,  he  could  not  shift  gears  without  con- 
siderable noise  and  probable  damage  to  the  gears,  after  complaining  several 
times,  took  up  some  of  the  tloor  boards,  so  that  he  could  press  the  clutch  far- 
ther down,  and  was  seriously  injured  when  his  rug  became  caught  in  the  ma- 
chinery.   Partridge  v.  Whiteley,  Ltd.  (1915)  8  B.  W.  C.  C.  53,  C.  A. 

5  2  Where  some  boys  employed  in  a  steel  mill  got  into  one  of  several  wagons, 
standing  on  a  steep  incline,  during  an  interval  of  rest,  and,  the  wagon  start- 
ing to  move,  one  of  them  jumped  out  and  tried  to  sprag  the  wheels,  and  was 
fatally  injured  in  the  attempt,  the  accident  did  not  arise  out  of  the  employ- 
ment, since  the  boys  had  been  warned  several  times  not  to  go  near  the  wag- 
ons. Powell  V.  Lanarkshire  Steel  Co.  (1904)  6  F.  1039,  Ct.  of  Sess.  (Act  of 
1897). 

Accidents  not  arising  out  of  employment:  Where  an  employ^,  upon  his  re- 
turn from  a  vacation,  in  attempting  to  go  to  the  place  of  his  employment, 
insisted  upon  riding  upon  a  wagon  of  his  employer,  contrary  to  the  rules  of 
his  employer  and  the  positive  orders  of  the  driver  of  the  wagon,  and  in  so 
doing  fell  from  the  wagon  and  suffered  an  injury.  Gonzales  v.  Lee  Moor  Con- 
tracting Co.,  2  Cal.  I.  A.  C.  Dec.  302.  England.  Where  a  collier  was  fatally 
injured  while  riding,  contrary  to  rules,  on  the  couplings  between  two  trams, 
going  from  one  part  of  the  mine  to  another.  Powell  v.  Brynddu  Colliery  Co. 
(1912)  5  B.  W^.  C.  C.  124,  C.  A.  Where  a  workman,  going  home  to  dinner,  tried 
to  jump,  contrary  to  the  regulations,  onto  a  tram  carrying  rubbish,  and  in  so 
doing  fell  and  was  killed.  Pope  v.  Hill's  Plymouth  Co.  (1910)  3  B.  W.  C.  C. 
339,  C.  A.,  and  (1912)  5  B.  W.  C.  C.  175,  H.  L.  Where  a  miner,  after  finishing 
his  day's  work,  jumped  onto  a  hutch,  intending  to  ride  to  the  bottom  of  the 
pit,  although  such  action  was  against  the  regulations,  and  was  injured  on  the 
way.  Kane  v.  Merry  &  Cuninghame,  Ltd.  (1911)  4  B.  W.  C.  C.  379,  Ct.  of 
Sess.  Where  a  boy,  sent  to  deliver  a  message,  his  tramway  fare  being  paid, 
was  permanently  injured  in  trying  to  board  a  tram  car  which  was  running  at 
a  speed  of  five  miles  an  hour,  although  he  knew  of  a  notice  forbidding  such 
action.  Wemyss  Coal  Co.,  Ltd.,  v.  Symon  (1913)  6  B.  W.  C.  C.  298,  Ct.  of 
Sess.  Where  a  flagman  on  a  traction  engine,  supposed  to  be  either  riding  in 
the  van  behind  the  engine  or  walking  in  front  of  it,  mounted  to  the  drawbar, 
although  he  had  been  warned  not  to,  and  was  injured  by  slipping  off.  Mc- 
Keown  v.  McMurray  (1911)  45  Ir.  L.  T.  190,  C.  A.  Where  a  fishmonger's  boy, 
delivering  fish  at  the  kitchen  of  an  infirmary  on  the  third  floor,  in  spite  of 
former  caution  went  up  in  a  hoist  instead  of  by  the  stairs,  and  was  injured. 
McDaid  v.  Steel  (1911)  4  B.  W.  C.  C.  412,  Ct.  of  Sess.  Where  a  collier  was  kill- 
ed in  an  untimbered,  very  dangerous  "goaf,"  into  which  the  rules  forl)ade  him 
to  go,  and  where  he  had  gone  to  ease  himself.     Cook  v.  Manvers  Main  Col- 


457  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    123 

more  exposed  than  persons  not  so  engaged,  the  accident  arises  out 
of  his  employment,  though  he  is  acting  negligently  or  contrary  to 
rules."  If  an  employer  is  without  knowledge  of  a  practice  among 
his  employes  which  adds  an  exceptional  risk  to  the  employment,  it 
would  be  plainly  unreasonable  to  hold  that  he  was  bound  to  an- 
ticipate an  accident  happening  from  such  unknown  risk.    But  where 

lieries,  Ltd.  (1914)  7  B.  W.  C.  C  696,  C.  A.  Where  a  girl,  working  on  a  steam 
tlireshing  machine  at  passing  sheaves  to  the  millman,  tried  in  his  temporary 
absence,  although  she  had  been  warned  not  to  leave  her  place,  to  step  across 
the  machinery  to  where  she  could  talk  to  a  fellow  servant,  and  was  injured. 
Callaghan  v.  Maxwell  (1900)  2  F.  420,  Ct.  of  Sess.  (Act  of  1S97).  Where  a 
second  mate,  who  had  become  intoxicated,  was  ordered  by  his  captain  to  go 
to  his  room,  but  instead  went  aft  to  talk  to  the  chief  engineer  on  a  personal 
matter,  and  on  the  way  fell  down  a  hatchway  and  was  killed.  Horsfall  v. 
Owners  of  S.  S.  Jura  (1913)  6  B.  W.  C  C.  213,  C.  A.  Where  a  youth  in  a 
mine  sought  to  reach  his  work  a  mile  away  by  riding  in  a  tub  on  an  endless 
rope,  which,  although  forbidden,  was  a  common  method,  and  was  fatally 
injured.  Barnes  v.  Nunnery  Colliery  Co.,  Ltd.  (1911)  4  B.  W.  C.  C.  43,  C.  A., 
and  (1912)  5  B.  W.  C.  C.  195,  H.  L.  Where  a  boy,  employed  pn  a  private 
railway,  whose  duties  were  to  walk  in  front  of  moving  wagons  which  were 
being  pushed  by  an  engine  and  keep  watch  during  shunting  operations,  was 
riding  on  the  buffer  of  the  first  wagon,  contrary  to  the  rules,  and  slipped,  and 
was  injured.    Herbert  v.  Fox  &  Co.,  Ltd.  (1915)  8  B.  W.  C.  C.  94,  C.  A. 

53  William  v.  Llandudno  Coaching  &  Carriage  Co.,  Ltd.  (1915)  8  B.  W.  C.  C. 
143,  C.  A.     See  next  preceding  section. 

Where  a  lad  working  at  a  machine  was  forbidden  to  sit  down,  because  it 
was  dangerous  to  do  so,  and  he  nevertheless  did  sit  down,  and  was  seriously 
and  permanently  injured  by  so  doing,  the  accident  arose  out  of  the  employ- 
ment, because  he  was  doing  the  work  he  was  engaged  to  do.  Chilton  v.  Blair 
&  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  607,  C.  A. 

Deceased,  who  was  working  about  a  barn  of  respondent,  and  occasionally 
drove  a  wagon,  on  the  occasion  on  which  he  met  his  death  took  a  different 
route,  and  drove  through  a  subway  under  a  right  of  way  of  a  railroad,  which 
was  not  a  regularly  traveled  wagonway,  but  had  all  the  appearances  of  a 
wagonway,  and  in  attempting  to  drive  under  the  subway  his  head  was  caught 
between  the  top  of  the  tank  and  the  lower  beams  of  the  bridge,  from  which 
he  received  injuries  causing  his  death.  The  Board  held  that  deceased  was 
working  in  the  line  of  his  employment,  that  he  drove  through  the  subway  in 
an  apparent  honest  effort  to  subserve  the  interest  of  the  employer,  and  that 
the  accident  arose  in  the  course  of  the  employment.  Hamang's  Estate  v. 
Paragon  Refining  Co.,  Bulletin  No.  1,  111.,  p.  23. 


§123  workmen's  compensation  458 

he  knows  of  such  practice  and  does  not  forbid  it,  and  an  accident 
happens,  the  accident  will  be  deemed  to  have  arisen  out  of  the 
employment.^* 

Where  a  workman  employed  to  operate  an  engine  and  dynamo  in 
the  basement  of  a  building  goes  to  an  upper  floor,  where  he  vol- 
unteers as  a  special  favor  to  other  workmen  to  take  them  in  the 
elevator  to  a  floor  above,  and  is  killed  in  so  doing,  his  death  does  not 
result  from  injuries  arising  out  of  his  employments^     But  where 

5  4Terlecki  v.  Strauss,  85  N.  J.  Law,  454,  89  Atl.  1023,  affirmed  by  Court 
of  Errors  and  Appeals,  86  N.  J.  Law,  708,  92  Atl.  1087 ;  Hulley  v.  Moosbrug- 
ger,  88  N.  J.  Law,  161,  95  Atl.  1007,  L.  R.  A.  1916C,  1203 ;  Sclimoll  v.  Weis- 
brod  &  Hess  Brewing  Co.  (N.  J.  Sup.)  97  Atl.  723. 

5  5  Spooner  v.  Detroit  Saturday  Night  Co.,  187  Mich.  125,  153  N.  W.  657, 
L.  R.  A.  1916A,  17.  Distinguishing  Miner  v.  Franklin  County  Telephone  Co., 
83  Vt.  311,  75  Atl.  653,  26  L.  R.  A.  (N.  S.)  1195,  holding  that  "the  voluntary 
offer  of  a  willing  servant  to  make  himself  useful  in  a  matter  not  covered  by 
any  express  command,  when  the  proffered  service  is  accepted  by  his  superior, 
although  not  by  an  approval  expressed  in  words,  cannot  be  said,  as  a  mat- 
ter of  law,  to  put  the  servant  outside  the  limits  of  his  employment."  In  that 
case  the  plaintiff  was  an  employg  of  the  defendant  telephone  company.  On 
the  day  of  the  accident  the  defendant's  foreman  said  to  the  linemen,  of  which 
the  plaintiff  was  one,  that  they  woiold  go  down  and  splice  the  cable  at  a 
certain  point,  and  all  went  together  to  the  place.  On  arriving  there  the  fore- 
man told  the  plaintiff  and  another  lineman  to  go  to  a  certain  place  and  get  a 
ladder.  They  were  imable  to  get  it,  and  the  plaintiff  so  reported  to  the  fore- 
man on  their  return.  The  foreman  was  then  on  the  cable  seat,  with  his  ma- 
terials at  hand,  and  was  just  commencing  the  work  of  splicing.  After  watch- 
ing him  awhile,  the  plaintiff  said  he  guessed  he  would  go  up  and  help  him, 
and  received  no  reply.  The  plaintiff  then  ascended  the  pole,  and  stood  on  an 
upper  cross-arm,  and  handed  the  sleeves  to  the  foreman  as  he  needed  them ; 
the  foreman  taking  them  from  him  and  using  them  as  he  proceeded  with 
the  splicing.  After  working  in  this  manner  for  about  20  minutes,  the  fore- 
man placed  the  bag  containing  the  sleeves  on  the  other  side  of  him,  which 
put  them  beyond  the  plaintiff's  reach;  and,  after  looking  on  a  while,  the 
plaintiff  said  he  would  go  down,  and  proceeded  to  do  so,  receiving  therein 
the  injury  complained  of.  These  were  the  circumstances  tending  to  show 
that  the  plaintiff  was  in  the  performance  of  and  carrying  on  the  very  work 
for  which  he  was  employed,  to  wit,  he  was  assisting  his  foreman,  who  un- 
doubtedly represented  the  master.  In  the  instant  case  Spooner  was  render- 
ing no  service  which  was  either  accepted  by  or  known  to  his  superior,  but 


459  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    123 

an  employe  of  a  contracting  company  was  fatally  injured  while  at- 
tempting to  rescue  from  a  cave-in  a  fellow  laborer  working  only  a 
few  feet  away  on  the  same  general  undertaking,  although  for  a 
different  employer,  the  accident  arose  out  of  his  employment.^® 

v,-as  engaged  in  a  voluntary,  friendly  act,  entirely  outside  the  scope  of  his 
employment  upon  the  night  in  question.  Distinguishing  also  tlie  case  of  Mc- 
Quibban  v.  Menzies,  37  Scottish  Law  R.  526.  In  that  case  a  workman  was 
engaged  as  a  laborer  in  a  steam  joinery,  his  duty  being  to  carry  wood  from 
the  machine  men  to  the  joiners  and  to  clean  and  sweep  up  the  floor  of  tbe 
machine  room.  A  belt  in  connection  with  one  of  the  machines  became  loose, 
and  he  went,  without  being  asked  to  do  so,  to  assist  the  machine  man  in  re- 
placing the  belt  upon  the  shaft.  At  the  request  of  the  machine  man  the  work- 
man ascended  a  ladder  to  try  and  replace  the  belt,  and,  his  arm  being  cauglit 
in  the  belt,  he  was  drawn  up  into  the  shaft  and  received  fatal  injuries.  It 
was  admitted  that,  had  a  foreman  been  present,  he  might  have  ordered  the 
workman  to  do  this  act,  but  no  other  person  had  authority  to  order  him  to 
do  so.  It  was  held  that  the  accident  was  one  arising  out  of  and  in  the 
course  of  the  employment  in  the  sense  of  the  Workmen's  Compensation  Act. 
The  court  said:  "The  question  of  law  which  we  have  to  decide  is  whether 
the  deceased  workman  was  injured  by  an  accident  arising  out  of  and  in  the 
course  of  his  employment,  and,  although  that  would  appear  primai'ily  to  be 
a  question  of  fact,  there  is  no  doubt  that  in  cases  of  this  kind  questions  of 
fact  and  law  sometimes  rim  into  one  another.  The  words  'arising  out  of  and 
in  the  course  of  the  employment'  appear  to  me  to  be  sufficient  to  include  some- 
thing which  occurs  while  the  workman  is  in  his  master's  employment  and  on 
his  master's  work,  although  he  is  doing  something  in  the  interest  of  his  mas- 
ter beyond  the  scope  of  what  he  was  employed  to  do.  The  Act  does  not  say, 
'when  doing  the  work  which  he  was  employed  to  perform,'  but  it  is  a  fair  in- 
ference that,  if  it  had  been  intended  to  limit  the  right  to  compensation  to 
such  accidents,  different  language  would  have  been  used  from  that  which  oc- 
curs in  the  Act.  It  must  be  assumed,  therefore,  that  the  Legislature  used 
language  of  wider  scope  to  include  cases  where  a  workman  intervenes  to  do 
something  useful  and  helpful  to  his  master,  although  outside  the  special  du- 
ties which  he  is  employed  to  perform."  After  citing  cases,  the.  court  conclud- 
ed: "The  action  of  the  workman  in  this  case  appears  to  me  to  have  been  a 
natural  and  helpful  intervention  in  the  conduct  of  his  master's  business,  and 
accordingly  I  am  of  the  opinion  that  the  question  should  be  answered  in  the 
affirmative." 

5  6  Water  v.  William  J.  Taylor  Co.,  218  N.  Y.  248,  112  N.  E.  727,  affirming 
170  App.  Div.  942,  154  N.  Y.  Supp.  1149. 


§  124  workmen's  compensation  460' 

§  124.     Intoxication 

Injuries  due  alone  to  drunkenness  of  the  injured  employe  are 
not  compensable,^''  but  slight  intoxication  will  not  necessarily  pre- 
vent an  injury  from  arising  out  of  the  employments^  In  the 
language  of  an  English  jurist:  "A  man  may  be  engaged  in  the 
performance  of  his  work  and  an  accident  may  occur  incidental  to 
his  work,  and  therefore  out  of  his  employment,  even  although  he 
is  in  a  state  of  intoxication  so  great  as  to  be,  in  the  opinion  of  ordi- 
nary people,  unfit  for  the  performance  of  his  work.  If  an  accident 
befalls  him  under  these  conditions,  it  appears  to  me  that,  owing  to 
his  intoxicated  condition,  it  is  rightly  called  an  accident  due  to 
serious  and  willful  misconduct,  but  it  is  none  the  less  an  accident 
arising  'out  of  his  employment,  because  it  is  incidental  to  it."  ^' 

§  125.     Susceptibility  to  risk 

Susceptibility  to  risk  does  not  prevent  recovery  for  an  injury 
or  death  proximately  caused  by  an  injury  arising  out  of  the  em- 

5  7  Where  the  workman  had  practically  left  his  employment  to  go  on  a 
spree,  and  was  thereafter  injured  while  in  an  intoxicated  condition,  the  injury 
did  not  arise  out  of  his  employment.  Minnaugh  v.  Brooklyn  Union  Gas  Co., 
The  Bulletin,  N.  Y.  vol.  1,  No.  8,  p.  10. 

Where  the  mate  of  a  steamship,  so  drunk  that  he  was  ordered  to  leave  the 
bridge,  died  of  injuries  sustained  from  falling  down  the  ladder,  the  accident 
did  not  arise  out  of  his  employment.  Murphy  &  Sandwith  v.  Cooney  (1914) 
2  I.  R.  76,  C.  A.  Where  a  commercial  traveler  was  seen  drunk  on  a  rail- 
way platform,  and  later  was  found  in  an  injured  condition  on  the  rails,  the 
accident  did  not  arise  out  of  the  employment.  McCrae,  Ltd.,  v.  Renfrew  (1914) 
7  B.  W.  C.  C.  SOS,  Ct.  of  Sess. 

5  8  Where  a  stableman,  who  was  under  the  influence  of  liquor,  was  fatally 
injured  while  he  was  ascending  a  ladder  fastened  to  the  wall,  for  the  purpose 
of  chopping  feed  in  the  loft,  the  accident  arose  out  of  the  employment.  Wil- 
liam V.  Llandudno  Coaching  &  Carriage  Co.,  Ltd.  (1915)  8  B.  W.  C.  C.  143,  C.  A. 

5  9  Lord  President,  in  Frazer  v.  Riddell  &  Co.  (1914)  7  B.  W.  C.  C.  841,  Ct. 
of  Sess.  Where  the  driver  of  a  traction  engine  fell  from  his  engine  and  was 
killed,  the  accident  arose  out  of  his  employment,  even  though  he  was  drunk 
at  the  time.    Id. 


461  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION   DUE  §    125 

ployment.^''  Every  workman  brings  with  him  to  his  employment 
certain  infirmities.  They  may  be  disabilities  of  age,  or  disabilities 
of  infirmity  not  connected  with  age.     That  a  workman  put  in  a 

6  0  (Pub.  Laws  1911-12,  c.  831,  art.  1,  §  1)  Carroll  v.  What  Cheer  Stables  Co. 
(R.  I.)  96  Atl.  208;  Smith  v.  McPhee  Stevedoring  Co.,  1  Cal.  I.  A.  C.  Dec.  197; 
Rose  V.  City  of  Lros  Angeles,  2  Cal.  I.  A.  C.  Dec.  574;  Crowley  v.  City  of 
Lowell,  22.3  Mass.  288,  111  N.  E.  786. 

In  McGarva  v.  Hills,  1  Conn.  Comp.  Dec.  533  (affirmed  by  superior  court  on 
appeal),  it  was  held  that  predisposition  to  heat  exhaustion  is  not  a  bar  to 
recovery  of  compensation  for  death  due  to  sunstroke;  Commissioner  Chan- 
dler saying:  "To  apply  in  the  Connecticut  jurisdiction  the  rule  that  none  but 
physically  perfect  men  may  receive  compensation  would  amount  to  a  prac- 
tical repeal  of  the  Act  by  court  construction.  Especially  would  it  exclude  all 
sunstroke  and  heat  exhaustion  cases,  because  it  is  probably  an  established 
medical  fact  that  no  one  who  is  not  in  some  way  physically  predisposed  to  the 
disorder  ever  suffers  from  it." 

Where  a  man  working  on  the  edge  of  an  open  hold  of  a  ship  had  an  epileptic 
fit  and  fell  into  the  hold,  the  accident  arose  out  of  the  employment.  Wicks  v. 
Dowell  &  Co.,  Ltd.  (1905)  7  W.  C.  C.  14,  C.  A.  This  case  was  followed  in  the 
case  of  Driscoll  v.  Cushman's  Express  Co.,  Mass.  W.  C.  C.  (July  1,  1912 — 
June  20,  1913)  pp.  125,  130,  where  the  driver  of  an  express  wagon,  employed 
by  the  defendant,  while  driving  his  wagon,  suffered  a  fainting  fit,  or  an 
"epileptiform  attack,"  falling  from  his  wagon  and  fracturing  his  skull,  dying 
from  the  effect  of  the  fracture.  It  was  held  by  the  Industrial  Accident  Board 
in  review,  and  in  confirmation  of  the  decision  of  the  Committee  of  Arbitra- 
tion, that  the  employe  was  exposed  to  a  substantial  and  increased  risk  owing 
to  his  occupation,  that  the  injury  arose  out  of  and  in  the  course  of  his  em- 
ployment, and  that  the  dependent  mother  was  entitled  to  compensation.  In 
Feunah  v.  Midland,  etc.,  Ry.,  4  B.  W.  C.  C.  440,  where  an  engine  driver,  at 
work  on  his  engine  while  stopped  at  a  station,  tightening  up  a  nut,  fell  to 
the  permanent  way  and  died  from  the  effects  of  the  fall,  and  where  it  ap- 
peared that  he  had  previously  had  fainting  fits,  it  was  held  that  recovery 
could  be  had — that  it  was  an  accident  arising  out  of  his  employment.  Com- 
pensation was  allowed  in  Ismay  v.  Williamson,  1  B.  W.  C.  C.  232  (House  of 
Lords),  where  the  accident  was  a  heat  stroke  from  a  furnace  which  happened 
to  a  hand  employed  in  the  engine  room,  and  who  was  shown  to  have  been  in 
poor  physical  condition,  not  fit  to  stand  the  heat ;  in  Clover,  Clayton  &  Co.  v. 
Hughes,  3  B.  W.  C.  C.  275  (House  of  Lords),  a  case  of  death  of  a  workman 
who  had  a  very  serious  aneurism  of  the  aorta,  which  ruptured  while  he  was 
engaged  in  his  ordinary  occupation;  in  Mclnness  v.  Dunsmuir  &  Jackson,  1 
B.  W.  C.  C.  226  (Court  of  Session,  Scotland),  where  a  workman  having  hard- 
ening of  the  arteries,  by  overexertion  brought  on  cerebral  hemorrhage,  which 


§  125  workmen's  compensation  462 

dangerous  position  is  more  liable  to  accident  by  reason  of  the  dis- 
ability which  he  brings  with  him,  and  an  old  man  is  much  more  like- 
ly in  a  dangerous  position  to  meet  with  an  accident  than  is  a  young 
man,  will  not  relieve  the  employer  from  liability.  The  accident 
arises  out  of  the  employment  none  the  less  because  the  remote 
cause  is  an  infirmity  existing  when  the  employment  was  under- 
taken.*'^    Thus,  where  a  hack  driver  is  injured  from  being  thrown 

was  more  likely  to  occur  in  liis  case  on  account  of  the  hardening  of  the 
arteries ;  in  S.  S.  Swansea  Vale  v.  Rice,  4  B.  W.  C.  C.  298,  a  case  of  temporary 
illness,  contributing  to  the  accident  of  falling  overboard  from  a  vessel;  in 
Groves  v.  Burroughes  &  Watts,  Ltd.  (1911)  4  B.  W.  C.  C.  1S5,  C.  A.,  where 
a  workman,  after  an  operation,  resumed  his  work  at  the  lever  of  a  machine 
before  his  wound  was  completely  healed,  and,  being  suddenly  missed,  was 
found  several  yards  away  speaking  to  a  foreman,  with  the  blood  pouring  from 
his  wound,  which  had  been  reopened;  in  Brown  v.  Kemp  (1913)  6  B.  W.  C. 
0.  725,  C.  A.,  where  an  old  rupture  came  down  while  a  brewer's  assistant  was 
lifting  a  cask,  and  the  county  court  found  the  fact  of  the  accident;  in 
Dotzauer  v.  Strand  Palace  Hotel,  Ltd.  (1910)  3  B.  W.  C.  C.  387,  C.  A.,  where  a 
scullion  who  had  an  abnormally  sensitive  skin  suffered  inflammation  of  his 
hands  from  washing  crockery  in  hot  water  and  soda;  and  in  Maskery  v. 
Lancashire  Shipping  Co.  (1914)  Stone's  W.  C.  A.  Ins.  Cas.  290  (Court  of 
Appeal,  England),  a  case  of  death  from  heat  stroke  suffered  by  a  laborer  in 
the  engine  room  of  a  steamer  in  the  Red  Sea,  deceased  being  physically  unfit 
for  the  work,  which  involved  exposure  to  extreme  heat. 

61  Wicks  V.  Dowell  &  Co.,  Ltd.  (1905)  7  W.  C.  C.  14,  C.  A. 

"When  you  are  taking  the  incapacity  which  follows  when  a  second  cause 
has  intervened,  in  my  opinion  it  is  the  employers  at  the  time  of  the  interven- 
tion of  that  second  cause  who  are  liable  for  the  whole  incapacity ;  the  lia- 
bility is  not  less  because  the  man  has  brought  to  his  work  something  which 
makes  an  accident  more  serious  than  it  otherwise  would  be."  Fletcher  Moul- 
ton,  L.  J.,  in  Noden  v.  Galloways,  Ltd.  (1912)  5  B.  W.  C.  C.  7,  C.  A.  "In  my 
opinion,  when  once  the  case  is  shown  that  the  man  having  the  disability  occa- 
sioned by  the  1902  accident  met  with  another  accident  in  1910,  it  is  the  second 
employer  who  is  liable,  and  who  alone  is  liable,  and  that  it  is  not  relevant  to 
say  that  the  1902  accident  was  a  contributing  cause."  Cozens-Hardy,  in 
Noden  v.  Galloways,  Ltd.,  supra. 

Where  an  employ§  was  partially  paralyzed  and  totally  incapacitated  for  a 
year  by  reason  of  an  injury  due  to  strain,  and  died  of  pneumonia  which  he 
was  unable  to  resist  because  of  his  weakened  condition,  the  injury  arose  out 
of  his  employment.  Merritt  v.  Travelers'  Insur.  Co.,  2  Mass.  Wk.  Comp. 
Cases,   635    (decision  of   Com.   of  Arb.,   affirmed  by   Indus.   Ace.   Bd.).     The 


4G3  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION  DUB  §    125 

from  his  seat  while  dizzy  in  consequence  of  a  disease,  the  question 
whether  the  accident  arose  "out  of"  his  employment  depends  on 
whether  the  proximate  cause  arose  out  of  the  employment,  regard- 
less of  the  fact  that  such  proximate  cause  was  originated  or  aided  by 
the  employe's  disease  as  the  remote  cause.°^  To  this  rule  that  the 
benefits  of  the  Compensation  Acts  are  not  restricted  to  persons  in 
normal  condition,  but  cover  subnormal  persons  as  well,  exception 
has  been  made  where  varicose  ulcers  had  been  so  repeated  and  so 
virulent  as  to  leave  only  scar  tissue  upon  the  shins  of  an  injured 
workman,  so  that  a  slight  abrasion  of  the  skin,  which  in  the  nor- 
mal person  would  have  amounted  to  nothing,  resulted  in  a  pro- 
tracted and  stubborn  ulcer.'^^ 

evidence  showed  in  this  case  that  the  employg  received  a  personal  in- 
jury while  lifting  a  crate  of  bottles,  and  that  this  injury  had  materially 
accelerated  and  aggravated  a  nervous  condition  which  ^existed  at  the  time: 
also  it  was  in  evidence  that  the  employe  was  doing  work  which  was  entirely 
beyond  her  physical  ability  to  perform.  It  was  held  that  the  employe  was 
entitled  to  compensation.  Pidgeon  v.  Md.  Casualty  Co.,  2  Mass.  Wk.  Comp. 
Cases,  34S  (decision  of  Com.  of  Arb.).  Another  employ§  fell  and  broke  his 
leg  while  performing  his  usual  work,  and  it  became  necessary  to  amputate  it. 
The  insurer  refused  to  pay  compensation  on  the  ground  that  the  leg  was 
in  such  a  weakened  condition,  due  to  a  previous  operation,  that  any  slight 
jar  would  cause  a  fracture.  The  medical  evidence  showed  that  the  fracture 
was  due  to  a  fall  arising  out  of  and  in  the  course  of  the  employment,  and 
that  the  injured  leg  was  "possibly  weaker"  than  the  other  leg  prior  to  the 
injury.  It  was  held  that  the  employe  was  entitled  to  compensation.  Kesler 
V.  Mass.  Employes'  Insur.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  IGS  (decision  of 
Com.  of  Arb.). 

Where  the  medical  evidence  showed  that  the  applicant's  falling  of  the 
womb  was  directly  caused  by  straining  and  heavy  lifting  done  in  the  course 
of  her  employment,  no  disease  being  present,  but  the  injury  having  been  made 
possible  by  laceration  at  the  time  of  the  bii-th  of  a  child  30  years  before, 
such  injury  was  caused  by  accident  arising  out  of  the  employment.  Loustalet 
V.  Metropolitan  Laundry  Co.,  1  Cal.  I.  A.  C.  Dec.  318. 

C2  Carroll  v.  What  Cheer  Stables  Co.  (R.  I.)  96  Atl.  20S.  A  hack  driver 
was  injured  from  being  thrown  from  his  seat  while  he  was  helpless  from 
dizziness  due  to  the  disease;  his  fall  was  an  accident  arising  out  of  his 
employment.     (Wk.  Comp.  Act,  Pub.  Laws  1911-12,  c.  831,  art.  1,  §  1)  Id. 

63  Keen  v.  Scott  Co.,  2  Cal.  I.  A.  C.  Dec.  533. 


§  126  workmen's  compensation  464 

Division  IV. — Proq]? 

§  126.     Burden,  requisites,  and  sufficiency  of  proof 

In  a  proceeding  under  a  Workmen's  Compensation  Act  the  bur- 
den of  proving  the  facts  necessary  to  establish  a  case  is  on  the 
claimant,  the  same  as  in  any  proceeding  at  law.''*  He  must  show- 
by  competent  testimony,  direct  or  circumstantial,  not  only  the  fact 
of  an  accident  or  injury,  but  that  it  occurred  in  connection  with  the 
alleged  employment,  and  both  arose  out  of  and  in  the  course  of 
the  service  at  which  the  workman  was  employed.^^    The  burden  is 

64  Corral  v.  William  H.  Hamlyn  &  Son  (R.  I.)  94  Atl.  877. 

6  5  Hills  V.  Blair,  182  Mich.  20,  148  N.  W.  243;  (Wk.  Comp.  Act,  St.  1911,  c. 
751,  amended  by  St.  1912,  c.  571)  In  re  Von  Ette,  223  Mass.  56,  111  N.  E.  697; 
In  re  Scanlan,  Op.  Sol.  Dept.  of  L.  724. 

The  burden  of  furnishing  evidence  from  which  the  inference  can  be  legiti- 
mately drawn  that  the  injury  arose  "out  of  and  in  the  course  of  his  employ- 
ment" rests  upon  the  claimant.  McCoy  v.  Michigan  Screw  Co.,  ISO  Mich.  454, 
147  N.  W.  572,  L.  R.  A.  1916A,  323;  Dragovich  v.  Iroquois  Iron  Co.,  269  111. 
478,  109  N.  E.  999;  Armour  &  Co.  v.  Industrial  Board  of  Illinois,  273  111. 
590,  113  N.  E.  138;  Lannigan  v.  Lannigan,  222  Mass.- 198,  110  N.  E.  285;  In  re 
Doherty,  222  Mass.  98,  109  N.  E.  887 ;  In  re  Savage,  222  Mass.  205,  110  N.  E. 
283;  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458;  Reimers  v.  Proctor  Pub. 
Co.,  85  N.  J.  Law,  441,  89  Atl.  931;  Barnabus  v.  Bersham  Colliery  Co.  (1910) 
102  L.  T.  R.  621,  3  B.  216,  and  on  appeal  (1910)  103  L.  T.  R.  513,  4  B.  119,  48 
S.  L.  R.  727 ;  Cowell  v.  Mason,  1  Cal.  I.  A.  C.  Dec.  614 ;  Spencer  v.  Dowd,  1 
Cal.  I.  A.  C.  Dec.  46. 

In  a  case  involving  a  fatal  accident  attended  with  uncertainty  as  to  details, 
the  court,  opinion  by  Judge  Steere,  said:  "I  tbink  one  may  deduce  from  the 
decisions:  (1)  That  the  burden  is  always  on  the  applicant  to  prove  that  death 
resulted  from  an  accident  arising  out  of  as  well  as  in  the  course  of  the  em- 
ployment; (2)  that  such  proof  need  not  be  direct,  but  may  be  circumstantial 
evidence,  but  there  must  be  facts  from  which  an  inference  can  be  drawn,  as 
distinguished  from  mere  conjecture,  surmise,  or  probability;  and  (3)  that 
an  award  by  an  arbiter  cannot  stand  unless  the  facts  found  are  such  as  to 
entitle  him  reasonably  to  infer  his  conclusion  from  them."  Hills  v.  Blair,  182 
Mich.  20,  148  N.  W.  243. 

To  entitle  an  injured  employe  or  his  dependents  to  compensation  it  is 
necessary  to  prove:  (1)  That  the  accident  occurred  in  the  course  of  the  em- 
ployment, that  is,  while  the  employe  was  performing  some  service  for  his 


4C5  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION  DUE  §    126 

on  the  applicant  to  establish  the  fact  of  accident,  if  accident  be  es- 
sential under  the  Act,°«  that  the  injury  complained  of  was  proxi- 

emplover;  and  (2)  that  tlie  accident  arose  out  of  the  employment,  that  is. 
that  the  nature  of  the  accident  is  in  some  way  incidental  to  or  connected  with 
the  nature  of  the  employment.  Bush  v.  Ickleheimer  Bros.  Co.,  1  Cal.  I.  A. 
C.  Dec.  522.  Where  a  traveling  salesman  crossing  on  a  ferry  from  San  Fran- 
cisco to  Oakland  upon  business  becomes  nauseated  and  dizzy,  and  after  reach- 
ing Oakland  fell  because  of  such  dizziness,  the  fall  causing  concussion  of  the 
brain  and  disability  for  a  considerable  period  of  time,  and  the  evidence  fails 
to  show  that  the  bay  was  rough  or  weather  bad  at  the  time  of  crossing,  such 
evidence  is  insufficient  to  establish  an  accident  arising  out  of  the  employment 
as  the  cause  of  the  concussion  of  the  brain.  There  must  be  evidence  in  such 
cases  to  connect  the  cause  of  the  fall  with  a  risk  incidental  to  or  arising  out 
of  the  work  being  performed.  Van  Winkle  v.  Johnson  Co.,  2  Cal.  I.  A.  C.  Dec. 
188. 

In  the  absence  of  evidence  that  it  was  part  of  an  employe's  duty  to  cross  a 
track  or  be  on  such  track,  there  could  be  no  recovery  for  death  of  a  workman 
who  was  killed  by  an  engine  on  the  main  track,  who  had  left  his  place  of 
work  at  a  car  on  a  side  track.  Lannigan  v.  Lanuigan,  222  Mass.  198,  110  N. 
E.  285. 

Sufflciency  of  proof  that  injury  arose  out  of  and  in  course  of  employment. 
Evidence  authorizing  a  finding  that  decedent,  while  at  work  for  his  employer 
as  a  journeyman  carpenter  on  a  building  in  the  course  of  erection,  was  killed 
by  the  falling  of  a  bar  of  metal  from  one  of  the  upper  stories,  which  was 
caused  to  fall  by  a  workman  of  an  independent  contractor,  who  had  work  on 
the  same  building,  authorized  a  finding  that  decedent's  death  arose  "out  of 
and  in  the  course  of  his  employment."  (P.  L.  1911,  p.  136,  §  2)  Bryant  v. 
Fissell,  84  N.  J.  Law,  72,  86  Atl.  458.  Massachusetts.  Evidence  that  an  em- 
ploye, working  on  a  car  on  a  spur  track  which  was  about  four  inches  below 
the  main  line,  left  the  car  and  went  upon  one  of  the  main  tracks  of  the  rail- 
road, where  he  was  struck  by  an  engine  and  killed,  without  any  evidence 
showing  that  it  was  part  of  his  employment  to  cross  the  main  track,  or  why 
he  was  there,  was  not  sufficient  to  support  a  recovery  under  the  Act.  In  re 
Savage  (1915)  222  Mass.  205,  110  N.  E.  283.  The  evidence  showed  that  the 
employe  was  overcome  in  the  press  room  of  the  subscriber,  and,  starting 
home,  collapsed  on  the  street  and  was  taken  to  the  hospital.  A  physician  who 
treated  him  on  several  occasions  stated  he  could  find  no  evidence  of  anything 
tubercular  in  the  lung.  The  hospital  records  and  the  certificate  of  death 
gave  tuberculosis  as  the  cause  of  death.  It  was  held  that  the  employe  did 
not  receive  a  personal  injury  arising  out  of  and  in  the  course  of  his  em- 
ployment.    Leary   v.  Travelers'   Insur.   Co.,  2  Mass.   Wk.   Comp.  Cases,  184 

66  See  §  99,  ante. 
HoN.CoMP.— 30 


§  126  workmen's  compensation  466 

mately  caused  thereby,®^  and  that  the  incapacity  or  death  resulted 
from  such  injury. ^^    This  burden  may  be  sustained  by  circumstan- 

(decision  of  Com.  of  Arb.).  Michigan.  Evidence  that  a  workman  contracted 
blood  iioisoning  from  scratching  Ms  hand  on  a  manifold  on  which  he  was 
working,  and  died,  showed  that  his  injury  arose  out  of  and  in  the  course  of 
his  employment.  Fitzgerald  v.  Lozier  Motor  Co.  (1915)  187  Mich.  660,  154  N. 
W.  67.  Evidence  that  a  workman,  after  injuring  his  hand  on  a  nail  in  some 
fuel  with  which  he  was  firing  an  oven  in  defendant's  bakery,  died  of  septic 
pneumonia  resulting  from  systemic  sepsis,  which  developed  from  the  wound, 
showed  that  his  injury  arose  out  of  and  in  the  course  of  his  employment. 
Reck  V.  Wthittlesberger  (1914)  181  Mich.  463,  148  N.  W.  247,  Ann.  Cas.  1916C, 
771.  Wisconsin.  A  decision  of  the  commissioners  that  the  miliary  tuberculosis 
from  which  decedent  died  was  partly  caused  by  a  gas  explosion  could  not  be 
disturbed,  where  it  was  reasonably  sustained  by  the  testimony  of  physicians 
qualified  to  speak  on  the  subject  and  by  other  evidence.  Heileman  Brewing 
Co.  V.  Schultz  (1915)  161  Wis.  46,  152  N.  W.  446.  Where  it  appeared  merely 
that  the  workman's  thumb  became  swollen  while  he  was  at  work,  and  the 
l^hysician  called  found  it  infected,  and  the  infection  developed  until  he  was 
permanently  deprived  of  the  use  of  the  hand,  it  was  held  that  it  had  not  been 
proven  that  the  injury  was  sustained  in  the  course  of  employment.  Cliristian- 
sen  V.  St.  Mary's  Hospital,  Kep.  Wis.  Indus.  Com.  1914-15,  p.  20.  California. 
Where  the  eraploye,  while  in  the  course  of  his  employment  after  a  rainstorm, 
driving  floating  brush  away  from  a  railway  bridge,  was  last  seen  going  along 
the  bank  downstream,  and  it  appeared  that  there  was  no  necessity  nor  ap- 
parent reason  for  his  leaving  the  bridge,  and  no  service  to  be  rendered  else- 
where, and  that  he  was  drowned  by  slipping  off  the  bank  a  thousand  yards 
from  the  bridge,  marks  on  the  bank  so  indicating,  the  evidence  was  held 
insufficient  to  show  that  he  was  performing  service  in  the  course  of  his  em- 
ployment at  the  time  of  drowning.  Peroni  v.  San  Francisco,  Napa  &  Calistoga 
Ry.,  2  Cal.  I.  A.  C.  Dec.  818.  Where  an  employe  was  employed  to  operate  an 
automobile  for  hire  by  his  employer,  and  was  seen  to  depart  in  the  automobile 
driving  two  passengers  for  hire,  and  some  days  later  was  found  dead  by  the 
roadside,  circumstances  tending  to  show  that  he  had  been  murdered  by  the 
passengers  for  some  unknown  reason,  not  that  of  robbery,  such  evidence  was 
insuflicient  to  establish  that  his  murder  was  due  to  any  risk  arising  out  of 
his  employment.  There  is  no  presumption  of  law  to  the  effect  that  a  chauffeur 
is,  by  reason  of  his  occupation,  subject  to  any  special  risk  of  being  murdered, 
and,  in  the  absence  of  direct  evidence  sustaining  this,  a  death  benefit  cannot 
be  allowed  to  his  dependents.  Gibson  v.  Aves,  2  Cal.  I.  A.  C.  Dec.  185.  Evi- 
dence that  a  prescription  pharmacist,  by  reason  of  the  poor  lighting  of  his 

67  See  §  127,  post. 

6  8  See  §§  127,  129,  post. 


4G7  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    126 

tial  evidence  or  inferences  having  a  substantial  basis  in  the  evi- 
dence.®®    A  preponderance  of  the  evidence  is  sufficient.    By  a  "pre- 

working  quarters  and  the  fumes  arising  from  the  chemicals,  suffered  a  con- 
stant irritation  of  his  eyes,  resulting  in  temporary  disability,  was  insufficient 
to  prove  an  accident  arising  out  of  and  in  the  course  of  his  employment. 
Boehme  v.  Owl  Drug  Co.,  2  Cal.  I.  A.  C.  Dec.  529.  England.  Wliere  the  lid 
of  a  barrel  thrown  from  a  window  of  a  mill  struck  a  workman  working  in 
the  yard,  but  there  was  no  evidence  as  to  why  or  by  whom  the  lid  was  thrown, 
it  was  not  proved  that  the  accident  arose  out  of  the  employment.  Bateman  v. 
Albion  Combing  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  47.  In  a  case  where  a  miner 
was  carrying  powder  in  a  canister,  and  it  exploded,  injuring  him  fatally,  and 
the  trial  judge  drew  an  inference  that  the  man  had  uncovered  the  powder  in 
preparing  to  charge  a  blasting  hole  to  which  he  was  going  at  the  time,  it  was 
held  that  the  burden  of  proof  had  not  been  discharged.  Pugh  v.  Dudley 
(1914)  7  B.  W.  C.  C.  528,  C.  A.  In  a  case  where  a  workman  returning  from 
work  complained  of  a  pain  in  his  side,  and  was  later  found  to  have  a  fractured 
rib,  from  which  he  grew  steadily  worse,  and  finally  died,  and  where  the  only 
evidence  of  an  accident  was  a  notice  he  had  sent  to  his  manager,  and  the 
payment  of  money  compensation  to  his  wife,  it  was  held  that  there  was  proof 
that  the  accident  arose  out  of  and  in  the  course  of  the  employment.  Harley 
V.  Walsall  Wood  Colliery  Co.,  Ltd.  (1915)  8  B.  W.  C.  C.  86,  C.  A.  Evidence 
that  a  man  after  an  operation  went  back  to  his  work  at  the  lever  of  a  ma- 
chine before  his  wound  was  completely  healed,  and  when  suddenly  missed  was 
found  speaking  to  a  foreman  some  yards  away,  with  blood  pouring  from  the 
reopened  wound,  showed  that  the  accident  arose  out  of  the  employment. 
Groves  v.  Burroughes  &  Watts,  Ltd.  (1911)  4  B.  W.  C.  C.  185,  C.  A.  Where 
a  butcher's  canvasser  was  in  the  habit  of  riding  a  bicycle  on  his  rounds,  and 
came  back  one  day  lame,  covered  with  mud,  and  in  pain,  it  was  held  there 
was  evidence  of  an  accident  arising  out  of  and  in  the  course  of  his  employ- 

6  9  Fitzgerald  v.  Lozier  Motor  Co.,  187  Mich.  660,  154  N.  W.  67;  Frey  v. 
Kerens-Donnewald  Coal  Co.,  271  111.  121,  110  N.  E.  824;  Poccardi  v.  Public 
Service  Com.  (1915)  75  W.  Va.  542,  84  S.  E.  242,  L.  R.  A.  1916A,  200;  In  re 
Von  Ette,  223  Mass.  56,  111  N.  E.  697. 

Where  a  boy,  who  was  caught  in  a  driving  belt,  said  that  he  had  not  touched 
it,  but  had  been  caught  up  by  the  sleeve,  and  his  employers  declared  that  to 
be  impossible,  the  trial  judge,  after  visiting  the  spot,  held  that  the  boy  had 
been  caught  up  by  the  sleeve  and  then  instinctively  taken  hold  of  the  belt, 
and  so  been  carried  up,  and  it  was  held  that  the  inference  was  supported  by 
the  evidence.  Durrant  v.  Smith  &  Co.  (1914)  7  B.  W.  C.  C.  415,  C.  A.  But 
where  the  physician  in  attendance  refused  to  state  that  death  was  caused 
by  the  accident,  there  was  no  basis  for  an  inference  to  that  effect  by  the  court. 
Eeimers  v.  Proctor  Pub.  Co.,  85  N.  J.  Law,  441,  89  Atl.  931. 


§  126  workmen's  compensation  468 

ponderance  of  the  evidence"  is  meant  such  evidence  as,  when 
weig-hed  with  that  opposed  to  it,  has  more  convincing  force,  and 

ment.  Haward  v.  Rowsell  &  Matthews  (1914)  7  B.  Wv  C.  C.  552,  C.  A.  Evi- 
dence that  the '  employment  of  a  collier  was  such  that  scratches  were  often 
caused  on  his  arms  or  legs,  that  he  went  to  work  perfectly  sound  in  the 
morning,  and  later  required  help  with  his  work  (which  was  unusual),  and 
limped  and  rubbed  his  knee,  and  was  later  found  to  have  an'  abraded  knee, 
eventually  dying  from  septic  poisoning,  showed  that  the  accident  arose  out 
of  the  employment.  Hay  ward  v.  Westleigh  Colliery  Co.,  Ltd.  (1915)  S  B.  W. 
C.  C.  278,  H.  L.,  and  (1914)  7  B.  W.  C.  C.  53,  C.  A.  Where  a  mason's  laborer 
sustained  an  abrasion  on  the  thumb  of  the  hand  which  held  the  chisel,  and 
two  weeks  later  an  abscess  appeared  in  the  armpit,  and  the  man  died,  and 
where  circumstances  were  consistent  with  the  entry  of  a  microbe  into  his 
thumb,  causing  blood  poisoning,  on  the  day  of  the  accident,  it  was  held  that 
there  was  sufScient  evidence  to  support  an  inference  that  the  accident  arose 
out  of  the  employment.  Fleet  v.  Johnson  &  Sons  (1913)  6  B.  W.  C.  C.  60, 
C.  A.  Where  a  repairer  began  work  at  a  colliery  in  the  evening  uninjured, 
and  went  home  the  next  morning  with  one  of  his  fingers  crushed,  finally 
dying  of  blood  poisoning,  there  was  evidence  to  support  an  inference  that  the 
accident  arose  out  of  the  employment.  Mitchell  v.  Glamorgan  Coal  Co.,  Ltd. 
(190S)  9  W.  C.  O.  16,  C.  A.  Where  a  cook  on  board  a  ship  fell  overboard  in 
the  daytime  during  perfectly  calm  weather,  and  was  drowned,  there  vv'as  no 
evidence  of  an  accident  arising  out  of  his  employment.  Bender  v.  Owners  of 
S.  S.  Zent  (1910)  2  B.  W.  C.  C.  22,  C.  A.  Where  a  railway  fireman  went  to 
work  with  a  cut  on  his  finger  wrapped  in  a  piece  of  rag,  and  coal  dust  and 
oil  got  into  the  cut  while  he  was  working,  and  blood  poisoning  set  in,  the 
inference  of  the  trial  court  that  the  coal  dust  and  oil  were  the  cause  of  the 
blood  poisoning  was  not  supported  by  the  evidence.  Chandler  v.  Great  West- 
ern Ry.  Co.  (1912)  5  B.  W.  C.  C.  254,  C.  A.  Where  a  weaver  at  work  caused 
an  abrasion  of  his  eye  by  rubbing  it  after  getting  dust  in  it,  and  at  some 
undetermined  place  and  time  a  germ  entered  through  the  abrasion,  and  caused 
inflammation  and  total  incapacity,  the  accident  did  not  arise  out  of  the  em- 
ployment. Bellamy  v.  Humphries  &  Sons,  Ltd.  (1913)  6  B.  W.  C.  C.  53,  C.  A. 
Where  a  miner's  wife  found  his  feet  swollen  and  wounded  two  days  after  a 
piece  of  rock  fell  on  it,  and  the  man  died  of  tetanus,  the  microbe  of  which 
might  have  got  in  through  the  wound,  the  accident  was  inferred  to  have  been 
caused  by  the  wounds,  and  hence  arose  out  of  his  employment.  Stapleton  v. 
Dinnington  Main  Coal  Co.,  Ltd.  (1912)  5  B.  W.  C.  C.  602,  C.  A.  Where  a 
workman  in  good  health,  working  in  the  hold  of  a  ship,  came  up  out  of  the 
hold  in  great  pain,  went  home,  where  it  was  found  he  had  marks  on  his  ribs, 
and  died  of  pneumonia,  there  was  sufficient  proof  of  an  accident  arising  out 
of  his  employment.  Lovelady  v.  Berrie  (1910)  2  B.  W.  C.  C.  62,  C.  A.  Where 
a  collier,  who  was  obliged  to  work  on  his  knees,   died  of  blood  poisoning 


469  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    126 

from  which  it  results  that  the  greater  probability  is  in  favor  of  the 
party  on  whom  the  burden  rests.^"  While  if  death  occurs  immedi- 
ately or  soon  after  the  accident,  it  is  not  essential  that  there  shall 
have  been  any  eyewitness  to  the  accident/^  and  in  some  jurisdic- 
tions the  strict  rule  as  to  the  burden  of  proof  is  somewhat  re- 
caused  by  an  abscess  on  one  of  them,  but  there  was  no  evidence  to  show 
what  actually  caused  the  abscess,  it  was  held  that  it  had  not  been  proven  that 
the  accident  arose  out  of  the  employment.  Howe  v.  Fernhill  Collieries,  Ltd. 
(1912)  5  B.  W.  C.  C.  629,  C.  A. 

70  Cline  v  Studebaker  Corporation  (Mich.)  155  N.  W.  519,  L.  R.  A.  191GC, 
1139. 

71  In  re  Von  Ette,  223  Mass.  56,  111  N.  E.  697;  Marshall  v.  Owners  of 
Steamship  Wild  Rose,  [1910]  A.  C.  4S6 ;    Fletcher  v.  Ship  Duchess,  [1911]  A. 

C.  671. 

A  railroad  employe,  found  after  a  train  had  gone  out,  with  his  feet  toward 
the  track  and  an  injury  in  his  head,  and  who  died  a  short  time  afterward 
from  a  broken  neck,  was  injured  by  an  accident  presumably  arising  out  of 
and  in  the  course  of  his  employment.  Musik  v.  Erie  R.  R.  Co.,  85  N.  J.  Law, 
129,  89  Atl.  248.  This  case  finds  support  in  Nicholas  v.  Dawson,  15  T.  L.  R. 
242;  McDonald  v.  Owner  of  S.  S.  Banana,  24  T  L.  R.  887;  Bender  v.  Owners 
of  S.  S.  Zent   100  L.  T.  639;    Gilbert  v.  Owners  of  Nizam,  79  L.  J.  K    1172. 

The  employe  left  the  shop  to  fill  a  bottle  and  did  not  return.  His  unex- 
plained absence  caused  a  fellow  workman  to  look  for  him,  and  he  noticed  the 
employe  was  lying  at  the  foot  of  a  stairway  upon  which  he  stood  while  filling 
the  bottle.  He  was  dead  when  discovered.  It  was  held  that  the  fatal  injury 
arose  out  of  and  in  the  course  of  his  employment.  Carroll  v.  U.  S.  Casualty 
Co.,  2  Mass.  Wk.  Comp.  Cases,  488  (decision  of  Com.  of  Arb.).  It  was  the 
custom  of  an  employe  to  warn  the  stablemen  of  the  arrival  of  teams  by  ring- 
ing a  bell,  and  he  often  looked  out  of  the  window  to  notice  whether  the  team 
had  been  admitted.  The  sill  was  only  27  inches  from  the  floor ;  the  employe 
was  a  tall  man ;  the  floor  was  often  wet,  and  in  consequence  might  possibly 
be  slippery ;  employes  would  be  apt  to  lose  their  balance  looking  out  of  this 
window.  The  dead  body  of  the  employe  was  found  on  the  ground  underneath 
the  window  from  which  he  looked  to  note  the  arrival  and  admission  of  teams, 
a  few  minutes  after  the  bell  had  been  sounded  to  announce  the  arrival  of  one. 
There  were  no  witnesses  to  the  fatality.  It  was  held  that  the  widow  was 
entitled  to  compensation.  O'Brien  v.  Casualty  Co.  of  America,  2  Mass,  Wk. 
Comp.  Cases,  226  (decision  of  Com.  of  Arb.). 

Where  a  brewery  employe,  whose  duty  it  was  to  clean  up  after  the  day's 
work  and  turn  on  steam  in  certain  machines,  was  found  unconscious  from 
an  injury  in  the  basement  of  the  building,  and  thereafter  died,  the  conclusion 


§  126  workmen's  compensation  470 

laxed/^  the  burden  of  proof,  even  in  such  case  of  death,  rests  on 
the  claimant,  ordinarily  to  the  same  extent  as  it  would  rest  on  the 

that  he  was  injured  by  accident  in  the  course  of  his  employment  was  war- 
ranted.   Heileman  Brewing  Co.  v.  Shaw,  161  Wis.  443,  154  N.  W.  631. 

Where  the  employe,  an  ignorant  foreigner,  did  not  go  to  a  doctor  for  two 
weeks  after  the  injury  to  his  leg,  and  no  one  saw  the  accident,  but  several 
fellow  workmen  testified  to  having  been  told  of  the  accident  a  few  minutes 
after  it  happened,  and  the  superintendent  admitted  that  the  workman  showed 
him  an  injury  to  his  leg  two  days  after  the  date  of  the  accident,  the  evidence 
was  sufficient  to  prove  the  accidental  origin  of  the  injury.  Oyos  v.  Pacific 
Sewer  Pipe  Co.,  2  Cal.  I.  A.  C.  Dec.  622.  Where  a  night  watchman,  last  seen 
alive  when  he  relieved  his  fellow  watchman  upon  his  employer's  premises, 
was  murdered  by  unknown  criminals  upon  the  employer's  premises  in  the 
middle  of  the  night,  the  murderers  having  been  obliged  to  climb  over  a  fence 
to  enter  the  premises,  and  no  testimony  was  offered  as  to  who  the  murderers 
were  or  their  specific  motives  for  committing  the  murder,  the  evidence  justi- 
fied the  inference  that  the  night  watchman  was  murdered  while  acting  in  the 
course  of  his  employment  and  that  his  death  arose  out  of  his  employment. 
Shea  v.  Western  Grain  &  Sugar  Products  Co.,  2  Cal.  I.  A.  C.  Dec.  550. 

Where  an  engine  driver  was  standing  half  on  the  frame  of  his  engine  and 
half  on  the  platform,  tightening  a  nut,  and  shortly  afterward  was  seen  lying 
on  the  permanent  right  of  way  between  the  engine  and  the  platform,  and  died 
five  minutes  later,  it  was  held  that  the  accident  arose  out  of  his  employ- 
ment. Fanuah  v.  Midland  Great  Western  Ry.  (1911)  4  B.  W.  C.  C.  440,  C.  A. 
In  a  case  where  a  ship's  fireman  was  last  seen  on  deck  getting  a  drink  of 
water,  and  shortly  after  disappeared,  while  the  ship  was  at  sea,  an  inference 
that  the  accident  arose  out  of  his  employment  was  upheld.  Lee  v.  Stag  Line, 
Ltd,  (1912)  5  B.  W.  C.  C.  660,  C.  A.  Where  an  officer  of  a  ship  on  a  fine 
morning  complained  of  giddiness,  and,  after  going  below  and  taking  some 
castor  oil,  returned  to  his  watch  on  deck,  and  then  was  missed  and  never  seen 
again,  there  was  sufficient  evidence  that  death  arose  out  of  his  employment. 

"2  Where  the  lips  of  an  injured  employe  are  closed  by  death,  the  burden  of 
proof  which  ordinarily  rests  upon  the  applicant  to  establish  the  fact  of  em- 
ployment, injury,  and  death  arising  but  of  the  employment,  is  somewhat  re- 
laxed. The  defendants  are  required  to  disclose  all  information  in  their  pos- 
session and  at  least  in  some  measure  to  assume  the  burden  of  proof  of  a  valid 
defense.  Merritt  v.  North  Pacific  Steamship  Co.,  2  Cal.  I.  A.  C.  Dec.  237. 
Evidence  indicating  that  a  night  watchman  was  murdered  while  on  duty  on 
property  which  he  was  employed  to  watch  authorized  an  award,  though 
claimant  did  not  negative  the  possibility  that  death  resulted  from  a  conflict 
brought  on  by  deceased.  Western  Grain  &  Sugar  Products  Co.  v.  Pillsbury 
(Cal.)  159  Pac.  423. 


471  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUB  §    126 

workman  if  living."^  Evidence  conclusively  showing  an  injury  ade- 
quately accounted  for  by  acts  of  the  workman  in  the  course  of  his 
employment  is  not  overcome  by  the  fact  that  the  injury  might  by 
some  possibility  have  resulted  from  some  other  cause  not  shown  to 
exist.  In  such  case  the  issue  must  be  determined  in  the  light  of 
the  greater  likelihood.'^*  But  the  claimant  fails  if  an  inference 
favorable  to  him  can  only  be  arrived  at  by  a  guess ;  likewise  when 
two  or  more  conflicting  inferences  equally  consistent  with  the  facts 
arise  from  them.'^^ 

Owners  of  S.  S.  Swansea  Vale  v.  Rice  (1911)  4  B.  W.  C.  C.  298,  H.  L.  Where 
an  engineer,  fulfilling  his  contract  of  employment,  was  in  his  bunk  on  a  steam 
tug  an  hour  before  daylight,  and  being  missed  an  hour  later,  his  dead  body 
was  found  floating  in  the  water  near  the  ship,  there  was  evidence  that  the 
accident  arose  out  of  his  employment.  INIackinnon  v.  Miller  (1910)  2  B.  W.  C. 
C.  64,  Ct.  of  Sess.  Where  a  ship's  watchman  was  seen  ashore  with  a  parcel 
of  food  in  his  hand  at  the  time  of  evening  when  he  usually  attended  to  the 
shore  end  of  the  mooring  ropes,  and  next  morning  was  found  dead  in  the 
water  40  yards  away,  the  parcel  being  found 'between  the  mooring  ropes  and 
the  gangway,  there  was  evidence  of  an  accident  arising  out  of  the  employ- 
ment. Richardson  v.  Owners  of  Ship  Avonmore  (1912)  5  B.  W.  C.  C.  34,  C.  A. 
Where  a  puddler  left  his  furnace  and  set  out  along  the  bank  of  a  canai  to- 
wards a  blacksmith's  shop,  and  eight  hours  later  was  found  drowned  in  the 
canal  halfway  along  his  route,  the  accident  was  held  to  have  arisen  out  of 
his  employment.  Furnival  v.  Johnson's  Iron  &  Steel  Co.,  Ltd.  (1912)  5  B.  W. 
C.  C.  43,  C.  A. 

73  "The  onus  of  proving  his  case  is  as  much  on  the  executors  of  a  deceased 
workman  as  on  a  living  one  who  has  been  injured."  Farwell,  L.  J.,  in  Bender 
v.  Owners  of  S.  S.  Zent,  [1909]  2  K.  B.  41. 

7  4  Gurney  v.  Los  Angeles  Soap  Co.,  1  Cal.  L  A.  C.  Dec.  163. 

In  a  case  under  the  federal  Act  it  appeared  that  a  colored  youth,  sixteen 
years  of  age,  employed  upon  river  and  harbor  work,  left  his  work,  taking  a 
government  skiff  to  go  across  the  river  for  some  reason  unknown  to  any  one 
but  himself.  As  there  was  no  definite  evidence  to  the  contrary,  it  was  con- 
sidered that  he  was  doing  something  incidental  or  necessary  to  his  occupation. 
In  re  WIebb,  Op.  Sol.  Dept.  of  L.  (1915)  336. 

7  5  McCoy  V.  Michigan  Screw  Co.,  ISO  Mich.  454,  147  N.  W.  572,  L.  R.  A. 
1916A,  323;  Lannigan  v.  Lannigan,  222  Mass.  198,  110  N.  E.  285;  Sponatski's 
Case,  220  Mass.  527,  528,  108  N.  E.  466,  L.  R.  A.  1916A,  333 ;  King's  Case,  220 
Mass.  290,  107  N.  E.  959 ;    Fumiciello's  Case,  219  Mass.  488,  107  N.  E.  349. 

"It  has  been  held  repeatedly  that  in  cases  arising  under  this  Act,  in  order 


§  126  workmen's  compensation  472 

Claimants  for  compensation  under  the  Washington  Act  must 
prove  that  the  employer's  business  was  extrahazardous  within  the 

that  an  award  of  compensation  may  be  made,  the  burden  of  proof  rests  upon 
the  claimant  to  show  by  a  preponderance  of  the  evidence  that  an  injury  oc- 
curred and  that  it  arose  out  of  and  in  the  course  of  the  employment.  The 
determination  of  these  issues  cannot  be  left  to  speculation,  surmise,  or  con- 
jecture. If  the  evidence  upon  the  questions  involved  is  slender,  but  is  suffi- 
cient to  satisfy  a  reasonable  man,  a  case  has  been  made  out  in  favor  of  the 
claimant."    In  re  Von  Ette,  223  Mass.  56,  111  N.  E.  G97. 

"Something  fell  in  the  plaintiff's  eye,  causing  pain;  he  rubbed  the  eye; 
gonorrhceal  infection  followed ;  he  did  not  have  the  infection  previously.  We 
cannot  determine  whether  the  infection  in  the  eye  came  from  the  substance 
which  fell  into  it,  from  water  with  which  he  bathed  it,  or  from  a  towel  with 
which  he  rubbed  it ;  but  in  either  event  we  regard  the  dropping  of  the  sub- 
stance in  the  eye  as  the  legal  cause  of  the  subsequent  loss  of  sight,  within 
the  meaning  of  the  Compensation  Act.  If  this  be  correct,  then  any  man  at 
work  at  any  occupation  who  gets  something  in  his  eye  while  at  work  and 
rubs  the  eye,  the  rubbing  'being  followed  by  gonorrhceal  infection,  may  re- 
cover for  the  loss  of  the  eye  simply  on  producing  evidence  of  these  facts, 
together  with  evidence  tending  to  show  that  he  did  not  have  gonorrhceal 
infection  previously.  We  cannot  agree  that  this  is  good  law.  It  bases  lia- 
bility upon  conjecture.  Unless  there  be  some  evidence  tending  to  show  that 
the  substance  which  fell  in  the  eye  caused  the  infection,  and  unless  that  fact 
can  be  found,  we  cannot  regard  the  subsequent  loss  of  the  eye  as  proximately 
resulting  from  an  injury  incidental  to  or  growing  out  of  the  employment." 
Voelz  V.  Indus.  Com.,  161  Wis.  210,  152  N.  W.  830. 

"The  burden,  and  the  whole  burden,  of  proving  the  conditions  essential  to 
the  obtaining  an  award  of  compensation  rests  upon  the  applicant  and  upon 
nobody  else,  and  if  he  leave  the  case  in  doubt  as  to  whether  those  conditions 
are  fulfilled  or  not,  where  the  known  facts  are  equally  consistent  with  their 
having  been  fulfilled  or  not  fulfilled,  he  has  not  discharged  the  onus  which 
lies  upon  him."  Collins,  M.  R.,  in  Pomfret  v.  Lancashire  &  Yorkshire  Ry.  Co., 
[19031  2  K.  B.  71S,  (Act  of  1S97). 

Where  a  workman  employed  in  building  a  bridge  over  a  river  near  its 
outlet  in  a  bay  was  last  seen  alive  at  his  home  some  miles  from  the  place  of 
work,  and  his  body  was  afterwards  found  in  the  bay,  and  there  was  no  evi- 
dence as  to  how  he  met  his  death,  the  presumption  was  that  he  came  to  his 
death  by  accident,  but  not  that  the  accident  arose  out  of  his  employment. 
Henry  Steers  v.  Dunnewald,  85  N.  J.  Law,  449,  89  Atl.  1007. 

Where  the  evidence  was  that  the  injured  employ^  felt  a  soreness  in  his 
right  hand,  which  developed  into  an  infection,  with  permanent  disability,  such 
infection  being  supposed  to  have  arisen  from  a  crack  in  the  callous  of  the 
employe's  finger,  caused  by  turning  a  wheel  or  crank,  but  he  could  not  say 


473  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    126 

meaning  of  the  Act,  that  an  accident  occurred  injuring  the  work- 
man while  he  was  performing  his  duty  in  such  employment,  and 

how  it  happeued,  or  that  the  hand  was  bruised  while  working,  the  evi- 
dence was  insufficient  to  prove  that  the  disability  was  caused  by  an  accident 
occurring  in  the  course  of  his  employment.  While  it  was  probable  that  the 
accident  was  so  received,  it  was  nevertheless  mere  conjecture,  and  not  proved. 
Netherland  v.  Contra  Costa  Constr.  Co.,  1  Cal.  I.  A.  C.  Dee.  440. 

Evidence  held  insufficient  to  prove  accident  arising  out  of  employment: 
Where  a  miner  was  found  lying  across  the  rails  in  a  mine,  with  injuries  that 
tended  to  show  that  he  had  been  riding  on  a  tub  and  had  struck  his  head 
against  the  roof,  which  sloped  down  at  this  place,  and  there  was  a  tub  11 
yards  ahead  of  him  which  had  been  moving  in  the  same  direction.  Bates  v. 
Mirfield  Coal  Co.  (1913)  6  B.  W.  C.  C.  165,  C.  A.  Where  a  seaman  returned  to 
his  ship  intoxicated  and  went  to  his  bunk,  and  was  found  next  morning 
fatally  injured  in  the  hold,  to  which  access  had  been  gained  by  forcing  open 
a  locked  door,  by  whom  not  being  known.  O'Brien  v.  Star  Line,  Ltd.  (1909) 
1  B.  W.  C.  C.  177,  Ct.  of  Sess.  Where  a  ship's  fireman  with  a  parcel  of  food 
in  his  arm  was  seen  on  a  jetty  hailing  his  ship  for  a  boat,  and  fell  from  the 
jetty  and  was  drowned,  and  there  was  no  evidence  concerning  his  reason  for 
going  ashore.  Dixon  v.  Owners  of  S.  S.  Ambient  (1912)  5  B.  W.  C.  C.  428,  C.  A. 
Where  a  sailor  set  out  from  his  ship,  which  was  at  the  quay  side,  for  the 
purpose  of  getting  provisions,  and  next  morning  was  found  drowned  in  the 
dock  about  10  or  15  feet  from  the  gangway  and  3  feet  from  the  shore,  and  his 
cap  was  found  on  the  quay.  Mitchell  v.  Owners  of  S.  S.  Saxon  (1912)  5  B.  W. 
C.  C.  623,  C.  A.  Where  a  ship's  cook,  with  Eright's  disease,  which  caused 
frequent  micturition,  was  last  seen  in  his  galley  in  the  early  morning,  and 
where  to  reach  the  water-closet  he  would  have  had  to  step  out  of  the  galley 
onto  the  open  deck,  in  the  dark,  and  about  8  feet  from  the  side,  which  was 
protected  by  a  railing  3  feet  7  inches  high,  and  the  weather  was  rough.  Bur- 
wash  V.  Leyland  &  Co.,  Ltd.  (1912)  5  B.  W.  C.  C.  603,  C.  A.  Where  a  ship's 
cook,  resting  in  his  bunk  one  afternoon  while  his  ship  was  in  harbor,  was 
told  by  the  captain  to  prepare  tea  for  the  crew,  was  missed  an  hour  and  a 
half  later,  although  all  his  outer  clothing  was  in  his  saloon,  and  next  day  was 
found  drowned,  wearing  only  underclothes,  there  being  evidence  that  he  some- 
times vomited  over  the  side  of  the  ship.  Kerr  v.  Ayr  Steam  Shipping  Co., 
Ltd.  (1914)  7  B.  W.  C.  C.  801,  H.  L.,  and  (1913)  6  B.  W.  C.  C.  324,  Ct.  of  Sess. 
Where  an  omnibus  driver,  while  sitting  on  his  bus  at  a  railway  station,  fell 
to  the  ground  and  died,  not  of  the  fall,  but  of  heart  disease.  Thackway  v. 
Connelly  &  Sons  (1910)  3  B.  W.  C.  C.  37,  C.  A.  Where  the  dead  body  of  a 
miner,  who  had  been  warned  not  to  work  at  a  place  where  blasting  was  being 
begun,  was  found  in  the  debris  after  the  blasts  had  been  shot,  but  there  was 
no  evidence  to  show  how  he  got  there.  Traynor  v.  Addie  &,  Sons  (1911)  4  B. 
W.  C.  C.  357,  Ct.  of  Sess.     Where  a  workman,  who  had  charge  of  a  barge 


§  126  workmen's  compensation  474 

that  the  injuries  resulted  in  wholly  or  partly  impairing  his  earning 
power  at  any  gainful  work.''^ 

anchored  near  a  wharf,  left  the  cabin,  and  when  next  seen  was  found  drowned 
150  feet  upstream  from  the  barge.  Charvil  v.  Manser  &  Co.,  Ltd.  (1912)  5  B. 
W.  C.  C.  385,  C.  A.  "Where  a  bargeman  ashore  with  leave  was  found  three 
days  later,  drowned,  with  a  rope  from  another  barge  around  his  arm,  and 
the  county  court  judge  inferred  that  the  man  was  using  the  other  barge  to 
return  when  he  was  drowned.  Booth  v.  Leeds  &  Liverpool  Canal  Co.  (1914) 
7  B.  W.  C.  C.  434,  C.  A.  Where  an  engineer  on  a  ship,  which  was  lying  in 
a  tidal  basin,  went  on  deck  at  night  to  get  some  fresh  air,  and  was  the  next 
day  found  drowned  close  to  the  ship,  and  just  under  a  part  of  the  railing 
where  the  crew  commonly  sat.     Marshall  v.  Owners  of  Wild  Rose  (1910)  3 

B.  W.  C.  C.  76,  C.  A.,  and  (1912)  5  B.  W.  C.  C.  385,  H.  L.  Where  a  lad,  hired 
to  control  a  motor  engine  from  a  switchboard,  left  his  place  for  some  unknown 
reason,  and,  getting  through  the  fence  around  the  engine,  was  killed.  Smith 
V.  Stanton  Ironworks  Co.  Collieries,  Ltd.  (1913)  6  B.  W.  C.  C.  239,  C.  A. 
Where  a  workman,  recovering  from  the  effects  of  the  ansosthetic  administered 
before  an  operation  for  the  amputation  of  his  finger,  was  again  subjected  to 
the  amesthetic  during  the  removal  of  a  decayed  tooth,  and  died,  the  proba- 
bility being  just  as  great  that  death  resulted  from  spasm  in  an  attempt  to 
swallow  blood  due  to  the  second  operation  as  that  it  was  due  to  the  anaesthetic 
given  for  the   first  operation.     Charles  v.   Walker,   Ltd.    (1910)   2  B.  W.  C. 

C.  5,  C.  A. 

In  Leach  v.  Oakley  Street  &  Co.,  [1911]  1  K.  B.  523,  where  there  was  no 
proof  whether  the  returning  seaman  had  reached  the  gangway,  the  employer 
was  not  liable.  In  this  case  Fletcher-Moulton,  L.  J.,  says:  "The  return  to  the 
ship  is  in  the  course  of  his  employment,  but  the  risks  do  not  become  risks 
arising  out  of  his  employment  until  he  has  to  do  something  specifically  con- 
nected with  his  employment  on  the  ship.  Thus,  if  the  risk  is  one  due  to  the 
means  of  access  to  the  ship,  the  accident  arises  out  of  the  employment;  but 
if  the  accident  arises  from  something  not  specifically  connected  with  the  ship, 
it  cannot  be  said  to  arise  out  of  his  employment.  I  do  not  think  the  dividing 
line  is  where  he  actually  touches  the  ship  or  the  special  means  of  access  to 
it."  In  Fletcher  v.  Owners  of  Ship  Duchess,  [1911]  A.  C.  671,  it  was  held  that 
where  the  master  of  a  ship  went  ashore,  returned  to  the  pier,  hailed  his 
ship  to  send  a  boat,  and  before  the  boat  reached  him  fell  off  the  pier  and 
was  drowned,  the  accident  did  not  arise  out  of  his  employment.  In  Webber 
V.  Wannsborough  Paper  Co.,  Ltd.,  [1913]  3  K.  B.  615,  a  seaman,  in  order  to 
reach  his  home  from  his  ship,  had  to  cross  a  plank,  one  end  of  which  rested 
on  the  dock,  the  other  end  on  the  rung  of  a  ladder,  which  was  permanently 
fixed  to  and  formed  a  part  of  a  quay.     He  crossed  the  plank  in  safety,  but 

7  6  (Wk.  Comp.  Act  Wash.  §  12)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  20. 


475  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION   DUE  §    126 

Where  a  claimant  under  the  New  York  Act  was  engaged  in  oper- 
ating a  lighter  when  injured,  his  failure  to  show  that  the  vessel  was 
not  one  of  another  state  or  country  will  not  defeat  his  right  of  re- 
covery.'^'' 

When  an  employe  is  taken  ill  at  work,  and  dies  soon  thereafter, 
there  is  no  presumption  that  he  was  killed  "in  the  course  of  em- 
ployment." '^  Nor  will  it  be  presumed  merely  from  the  nature  of 
his  employment  that  lead  poisoning  contracted  by  a  printer  was 
contracted  in  the  course  of  his  employment.^'* 

The  presumption  that  a  deceased  workman  committed  suicide 
cannot  be  indulged  in  as  a  mere  presumption,  without  any  fact  or 
circumstance  upon  which  it  can  be  logically  predicated,  for  the  pre- 
sumption of  law  is  in  favor  of  life,  and  the  natural  desire  and  strug- 
gle to  preserve  rather  than  to  destroy  it.^*"  The  presumption 
against  suicide  calls  for  proof  of  the  fact  which  it  negatives. ^^ 

when  he  had  ascended  a  few  steps  of  the  ladder  slipped  and  fell.  The  court 
held  that  the  sphere  of  his  employment  was  the  ship,  and  not  the  quay,  and 
that,  as  he  was  injured  while  he  was  ascending  the  fixed  ladder  attached  to 
the  quay,  the  accident  did  not  arise  out  of  and  in  the  course  of  his  employ- 
ment. 

77  Edwardson  v.  Jarvis  Lighterage  Co.,  168  App.  Div.  368,  153  N.  Y.  Supp 
391. 

7  8  In  re  Gertrude  Patterson,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  33. 

7  9  In  re  Doherty,  222  Mass.  98,  109  N.  E.  887. 

80  Milwaukee  Western  Fuel  Co.  v.  Indus.  Com.,  159  Wis.  635,  150  N.  W.  998; 
Sorensen  v.  Menasha  Paper  Co.,  56  Wis.  342,  14  N.  W.  446. 

81  Milwaukee  Western  Fuel  Co.  v.  Indus.  Com.,  supra. 


§  127  workmen's  compensation  476 


ARTICLE  III 

CAUSE  AND  RESULT 
Section 

127.  "When  accident  or  injury   proximate  cause. 

128.  When  proximate  cause  of  disease. 

129.  When  proximate  cause  of  hernia — Proof. 

130.  Insanity. 

131.  Resulting  incapacity  or  death. 

132.  Suicide. 

133.  Aggravation  of  existing  disease. 

134.  Aggravation  of  injury  after  accident. 

135.  Additional  injury. 

136.  Treatment  in  general. 

137.  Neglect  and  refusal  of  operation  or  medical  services. 

§  127.     When  accident  or  injury  proximate  cause 

Where  the  disability  is  so  related  to  the  accident  that  it  is  the 
natural  consequence  thereof,  compensation  should  be  awarded.^^ 
But  it  is  a  principle  of  very  general  application  that  the  industry 
is  chargeable  only  with  those  consequences  arising  out  of  accidents 
which  are  proximate  and  direct,  and  not  charg-eable  for  disabilities 
remotely  caused  by  the  injuries. ^^  Proximate  cause  is  a  question 
of  fact,  depending  for  its  solution  on  no  fixed  rule  but  on  the  cir- 
cumstances of  the  particular  case.^*    The  burden  is  on  the  claimant 

8  2  Lesh  V.  Illinois  Steel  Co.  (Wis.)  157  N.  W.  539.  In  Bockwich  v.  Housa- 
tonic  Power  Co.,  1  Conn.  Comp.  Dec.  2G6,  it  was  held  that  a  causal  connec- 
tion between  the  injury  or  death  and  the  employment,  if  established,  is  suf- 
ficient; proximate  cause  and  effect  need  not  be  shown  in  order  to  substan- 
tiate a  compensation  claim. 

83  Masich  v.  Northwestern  Pacific  R.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  545. 

84  "The  question  whether  the  death  resulted  from  or  was  accelerated  by 
an  accident  is  a  pure  question  of  fact."  Lord  Justice  Clerk,  in  Waruock  v. 
Glasgow  Iron  &  Steel  Co.,  Ltd.  (1904)  6  F.  474,  Ct.  of  Sess.  "In  my  opinion 
it  was  as  much  a  question  of  fact  for  the  county  court  judge  whether  the  con- 
tinuance of  the  incapacity  is  due  to  the  accident  or  to  some  other  cause  as  it 
was  to  decide  whether  the  original  incapacity  was  due  to  the  injury  caused  liy 


477  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION  DUE  §    127 

the  accident  to  the  workman."    Farwell,  L.  J.,  in  Warnecken  v.  Moreland  & 
Son,  Ltd.  (1910)  2  B.  W.  O.  C.  355. 

Where  an  employe's  death  was  due  to  his  being  poisoned  by  drinking  from 
a  bottle  a  poisonous  fluid  having  the  appearance  of  water,  under  the  impres- 
sion that  it  was  drinking  water,  while  he  was  at  work  on  premises  at  which 
workmen  supplied  themselves  with  drinking  water  from  a  neighboring  well 
by  means  of  buckets  and  bottles,  on  account  of  the  unsanitary  condition  of  the 
city  water  furnished  in  the  building  by  means  of  pipes,  the  injury  resulted 
from  his  employment.  As  Archibald's  negligence  or  carelessness  is  immate- 
rial, and  the  injury  was  incurred  manifestly  in  the  course  of  his  employment, 
it  remains  only  to  determine  whether  it  resulted  from  the  employment.  Ar- 
chibald V.  Ott  (W.  Va.)  87  S.  E.  791. 

Whore  a  workman  was  injured  by  straining  the  muscles  of  his  side  while 
laying  cement  blocks  under  a  porch,  through  attempting  to  lift  a  heavy  block, 
the  injury  was  proximately  caused  by  the  accident,  though  there  was  no  ex- 
ternal evidence  of  injury.  (St.  1915,  §  2.394 — 3  [3]).  Bystrom  Bros.  v.  Jacob- 
son,  162  Wis.  180,  155  N,  W.  919.  "It  seems,  as  counsel  for  respondents  con- 
tend, that  such  calls  are  quite  as  well  satisfied  by  the  circumstances  here. 
The  thing  which  occurred  was  somewhat  unusual.  It  was  unexpected  and 
undesigned.  There  was  an  external  occurrence ;  the  lifting  of  the  heavy 
block,  while  the  workman  was  not  in  an  advantageous  position  to  do  so,  re- 
quiring him  to  unduly  strain  the  muscles  of  his  right  side.  The  undue  strain 
was  not  foreseen  or  expected.  A  mishap  resulted — muscular  spasm  and  con- 
sequent disability.  There  was,  plainly,  the  physical  causation  spoken  of  in 
INIilwaukee  v.  Industrial  Com.,  160  Wis.  238-240,  151  N.  W.  247— the  effort 
to  handle  the  block  while  the  workman  was  so  circumstanced  as  to  cause  a 
perilous  strain  on  the  muscles  of  his  right  side." 

Where,  although  the  employe  had  been  for  many  years  crippled  from  a 
disease  of  the  hip  joint,  and  disability  did  not  set  in  for  four  months  after 
the  accident,  it  appeared  that  for  nine  years  immediately  prior  to  the  accident 
he  had  been  well  and  vigorous,  and  the  accident  was  such  as  might  in  itself 
cause  such  disability,  it  was  held  that  such  accident  was  the  proximate  cause 
of  such  disability.    McKee  v.  Southern  Electrical  Co.,  2  Cal.  I.  A.  C.  Dec.  805. 

In  Toole  v.  Robert  D.  Daly  Co.,  1  Conn.  Comp.  Dec.  651,  it  was  held  that  in 
spite  of  certain  existing  diseases,  which  might  cause  incapacity  at  some  fu- 
ture time,  the  disability  was  due  to  the  original  injury,  and  the  compensa- 
tion payments  continued. 

A  messenger  boy  employed  at  a  navy  yard  was  injured  by  falling  from  a 
bicycle  while  in  the  yard.  It  was  held  that  his  subsequent  death  was  trace- 
able to  the  injury  received  at  the  time  he  fell.  In  re  McSorley  Op.  Sol.  Dept 
of  L.  331. 

Where  a  miner,  who,  in  order  to  be  the  first  to  ascend,  stood  in  water  for 
half  an  hour  in  the  pit  bottom,  when  he  might  have  waited  his  turn  on  dry 
ground,  contracted  a  chill  and  became  permanently  deaf,  the  Injury  did  not 


§  127  workmen's  compensation  478 

result  from  the  accident.  McLuckie  v.  Watson,  Ltd.  (1913)  6  B.  W.  C.  C.  850, 
Ct.  of  Se.ss. 

Burns. — It  was  questionable  whether  the  fatal  injury  occurred  by  reason 
of  the  lighting  of  a  cigarette  by  the  employe  and  the  ignition  of  his  clothing, 
or  by  reason  of  the  use  of  a  lantern  or  light.  The  evidence  showed  that  the 
clothing  of  the  employe  was  saturated  with  oil,  and  that  everywhere  he  ran 
after  the  accident  oil  dripped  and  pieces  of  clothing  fell,  following  the  flames 
from  the  oil  drippings.  The  probable  and  reasonable  cause  of  the  presence 
of  oil  in  such  excess  quantity  was  traced  to  the  lantern,  according  to  the  tes- 
timony of  several  witnesses.  The  Committee  of  Arbitration  held  that  the 
widow  was  entitled  to  compensation.  Parker  v.  American  Mutual  Liability 
Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  392  (decision  of  Com.  of  Arb.).  Where 
an  employ^  received  a  slight  injury,  to  which  bandages  soaked  in  turpentine 
were  applied,  and  some  days  later  the  employe  accidentally  set  fire  to  the 
bandages  while  lighting  his  pipe,  the  burns  received  in  the  second  accident 
are  not  proximately  caused  by  the  first  accident,  and  are  therefore  not  com- 
pensable.   Isaacson  v.  White  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  819. 

Injury  to  knee. — A  dislocation  of  the  semilunar  cartilage  of  the  knee,  caus- 
ed by  quickly  rising  from  a  stooping  position  required  by  the  nature  of  the 
employment,  was  held  to  have  been  proximately  caused  by  the  employment. 
Giampolini-Lombardi  Co.  v.  Employers'  Liability  Assur.  Co.,  2  Cal.  I.  A.  C. 
Dec.  1010.  An  employ^  stepped  on  a  bobbin  that  lay  on  the  floor  in  her  place 
of  employment,  seriously  wrenching  her  left  knee.  This  knee  had  been  slight- 
ly injured  from  another  cause  several  months  previous,  incapacitating  her 
for  work  at  that  time  for  two  days.  The  latter  injury  was  held  to  be  the 
cause  of  all  her  incapacity  for  work  at  the  time  of  the  hearing,  and  she  was 
entitled  to  compensation.  Toy  v.  Md.  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases, 
147  (decision  of  Com.  of  Arb.,  aflirmed  by  Indus.  Ace.  Bd.). 

Injury  to  eye. — When  an  accident  to  an  eye,  which  at  first  appears  not  seri- 
ous, results,  after  a  week  or  more,  in  a  diseased  condition  of  the  eye  which 
destroys  the  sight,  the  "injury  occurred,"  within  the  meaning  of  the  statute, 
when  the  diseased  condition  culminated.  Johansen  v.  Union  Stockyards  Co., 
99  Neb.  328,  156  N.  W.  511.  Where  the  evidence  definitely  shows  that  foreign 
substances  got  into  the  eye  of  the  applicant  while  working  in  the  course  of  his 
employment,  and  they  subsequently  cause  irritation,  resulting  in  ulceration 
and  the  loss  of  the  sight  of  the  eye,  the  loss  was  proximately  caused  by  acci- 
dent arising  out  of  the  employment.  Grant  v.  Narlian,  1  Cal.  I.  A.  C.  Dec. 
482.  Where  creosote  accidentally  dropping  on  an  employe's  eye  caused  an 
inflammation  which  would  normally  disappear,  but  which  started  up  an  in- 
flammation due  to  the  presence  of  a  piece  of  steel  which  became  embedded  in 
the  eye,  five  years  previously,  which  latter  inflammation  resulted  in  the  loss  of 
the  eye,  but  would  not  have  occurred  except  for  some  such  exciting  cause  as  the 
creosote,  the  creosote  was  the  proximate  cause  of  the  disability.  Shields  v. 
Miller,  2  Cal.  I.  A.  C.  Dec.  1032.  A  partial  and  temporary  loss  of  sight,  caus- 
ed by  the  bursting  of  small  blood  vessels  in  the  eye,  held  to  have  been  cans- 


479  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION   DUE  §    127 

to  prove  that  the  injury  was  the  proximate  cause  of  the  incapacity 
or  death,«^  as  well  as  that  the  accident,  if  accident  be  essential,  was 
the  proximate  cause  of  the  injury.^^ 

ed  either  by  heavy  lifting,  increasing  the  blood  pressure  of  the  applicant,  or 
by  applicant's  getting  cotton  seed  oil  in  his  eye,  both  of  these  possible  causes 
having  occurred  in  the  course  of  the  employment  at  the  time  the  eye  trouble 
was  first  noted,  and  no  other  possible  cause  being  in  evidence.  Gurney  v. 
Los  Angeles  Soap  Co.,  1  Cal.  I.  A.  C.  Dec.  163.  Where  gravel  from  a  dril  used 
in  hydroelectric  construction  flew  into  a  workman's  eye  and  injured  it,  and 
the  employer  claimed  that  the  loss  of  sight  was  due  to  tuberculosis,  there  was 
no  connection  between  the  tuberculosis  and  the  injury,  which  Y^^/^^^^^^J^J 
the  flying  gravel.  Sileg  v.  Southern  Cal.  Edison  Co.,  2  Cal.  I.  A.  C.  Dec.  9SS. 
Where  a  workman  who  was  blind  in  one  eye,  although  the  fact  could  not  be 
detected  suffered  an  accident  which  made  it  necessary  to  remove  the  blind 
eye  and  he  then  could  not  get  work,  because  his  incapacity  was  apparent, 
the' incapacity  was  due  to  the  accident.  Ball  v.  Hunt  &  Sons,  Ltd  (1912)  _o 
B  W  C  C  459,  H.  L. ;  4  B.  W.  C.  C  225,  C.  A.  Where  a  miner,  blinded  m 
one  eye  by  an  'accident,  could  not  obtain  work  underground  on  account  of 
his  disability,  and  earned  much  lower  wages  at  surface  work,  there  was  inca- 
pacity resulting  from  the  injury.  Arnott  v.  Fife  Coal  Co.,  Ltd.  (^o.  2j,  (191.., 
6  B.  W.  C.  C.  281,  Ct.  of  Sess. 

Loss  of  voice.-ln  Unodeskia  v.  Scovill  Mfg.  Co.,  1  Conn.  Comp.  Dec.  32, 
where  the  claimant,  in  a  tubercular  condition  at  the  time  of  the  injury,  claim- 
ed that  his  loss  of  voice  was  due  to  burns  received  on  the  back  of  his  hand 
from  a  solution  of  vitriol  used  in  his  employment,  it  was  held  that  the  acci- 
dent  was  not  connected  with  the  loss  of  voice,  but  that  the  loss  of  voice  was 
due  to  tubercular  laryngitis. 

85  Allen  V.  Southwestern  Surety  Ins.  Co.,  1  Cal.  L  A.  C.  Dec.  G7 ;  Dundee 
Steam  Trawling  Co.,  Ltd.,  v.  Robb  (1910)  48  S.  L.  R.  13. 

The  burden  of  proof  is  upon  the  applicant  for  death  benefits  to  establish 
that  the  death  was  proximately  caused  by  an  accident.  Lucieu  v.  Judian  Mfg. 
Co.,  1  Cal.  I.  A.  C.  Dec.  509. 

Suficiency  of  proof  that  the  death  resulted  from  the  injury.— Where  it  was 
claimed  that  the  aneurism  of  the  iliac  artery,  which  caused  death,  was  caus- 
ed by  a  blow  in  the  left  groin,  but  the  evidence  indicated  that  such  a  result 
was  improbable  from  such  a  blow,  and  that  an  aneurism  is  usually  caused 
by  an  infected  condition,  the  death  was  not  shown  to  have  proximately  result- 
ed from  the  accident.  McKenzie  v.  Pullman  Co.,  2  Cal.  L  A.  C.  Dec.  984. 
Where  the  applicant,  a  sufferer  from  chronic  troubles  of  the  uterus,  three 
months  after  the  accident  required  an  operation  for  draining  a  deposit  of 

86  See  note  86  on  page  483. 


§  127  workmen's  compensation  480 

As  said  in  a  Wisconsin  case:  "Proximate  cause,  as  applied  to 
negligence  law,  has,  by  definition,  included  within  it  the  element 

fluid  from  her  hips,  and  surgical  testimony  gave  rise  to  a  serious  doubt  that 
the  disability  was  the  result  of  exterior  injury,  the  proximate  cause  of  the  dis- 
ability was  held  not  have  been  shown  to  be  exterior  injury,  and  the  burden  of 
proof  resting  on  the  applicant  was  not  discharged.  Ash  v.  Barker,  2  Cal.  I. 
A.  C.  Dec.  577. 

In  Arnold  v.  Town  of  Brooklyn,  1  Conn.  Comp.  Dec.  188,  where  the  dece- 
dent, who  died  of  pneumonia,  was  in  a  poor  physical  condition  and  of  low- 
ered vitality  because  of  a  previous  disease,  and  the  evidence  of  the  schoolroom 
where  she  taught  being  insufticiently  heated  was  weak  and  contradicted, 
it  was  held  that  the  burden  to  show  a  causal  connection  between  the  death 
and  the  employment  was  not  discharged.  In  Theroux  v.  Shore  Line  Electric 
R.  R.  Co.,  1  Conn.  Comp.  Dec.  667,  where  the  death  of  the  workman  nearly 
two  years  after  the  injury  was  stated  in  the  certificate  of  death  by  the  at- 
tending physician  to  have  been  due  to  the  injury  received,  and  other  medical 
evidence  tended  to  corroborate  this  conclusion,  the  commissioner  held  a  caus- 
al connection  was  to  be  assumed,  and  awarded  compensation.  In  Maloney 
V.  Waterbury  Farrel  Foundry  &  Machine  Co.,  1  Conn.  Comp.  Dec.  220,  it 
was  held  that  where  death  was  due  to  a  pulmonary  embolism,  developed  fol- 
lowing an  apparently  safe  operation  for  hernia,  such  developments  being  rec- 
ognized by  medical  authorities  as  not  uncommon  even  after  simple  operations, 
death  was  due  to  the  injury.  In  Corcoran  v.  Farrel  Foundry  &  Machine  Co., 
1  Conn.  Comp.  Dec.  42,  where  after  an  operation  for  hernia  a  workman  took 
scarlet  fever  while  still  in  the  hospital,  and  died,  the  attending  physician  cer- 
tifying that  his  death  was  due  to  the  fever,  death  was  held  not  to  have 
been  proximately  due  to  the  hernia  or  the  operation.  In  Merriman  v.  Sco- 
vill  Mfg.  Co.,  1  Conn.  Comp.  Dec.  596,  it  was  held  that,  although  an  electric 
shock  was  shown  to  have  been  received  in  the  course  of  employment,  the  pre- 
ponderance of  evidence  did  not  support  the  theory  of  the  attending  physician 
that  the  workman's  death,  due  to  septic  peritonitis,  was  due  to  a  lesion  of 
the  intestines  caused  by  the  electric  shock,  but  ratlier  tended  to  show  that 
death  was  due  to  acute  appendicitis.  In  Helms  v.  Harris  Construction  Co., 
1  Conn.  Comp.  Dec.  498,  where  a  workman  received  a  wound  on  his  forehead, 
on  which,  after  it  had  closed,  but  while  it  was  still  fresh  and  tender,  two  blis- 
ters were  formed  by  the  rubbing  thereon  of  the  rim  of  his  hat,  aiid  medical 
evidence  showed  that  the  breaking  of  these  blisters  opened  a  "gate  of  admis- 
sion" for  germs  causing  erysipelas,  from  which  the  workman  died,  it  was  held 
that  death  was  due  to  the  injury.  In  Palama  v.  Chase  Metal  Works,  1  Conn. 
Comp.  Dec.  444,  where  the  deceased  workman  was  found  dead  in  a  sitting 
position  near  his  work,  and  the  evidence  showed  that  death  could  not  have 
been  due  to  an  electric  shock  as  claimed,  because  the  power  had  been  shut  off, 
it  was  held  death  was  due  to  disease,  and  not  to  injury.     In  Wetherell  v. 


481  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUE  §    127 

of  reasonable  anticipation.  Such  element  is  a  characteristic  of  neg- 
ligence not  of  physical  causation.     As  long  as  it  was  necessary  to 

American  Hardware  Corp.,  Corbin  Cabinet  Lock  Co.  Div.,  1  Conn.  Comp. 
Dee.  367,  where  claimant  tiad  asthma  prior  to  the  alleged  injury,  claimed  to 
be  due  to  dusty  conditions  consequent  upon  scraping  plaster,  and  medical  evi- 
dence was  to  the  effect  that,  while  the  dust  might  aggravate  existing  condi- 
tions, it  could  not  have  caused  the  claimant's  condition,  it  was  held  the  inca- 
pacity was  not  caused  by  the  injury  alleged.  In  Petersen  v.  Sperry  &  Barnes, 
1  Conn.  Comp.  Dec.  370,  where  the  continuous  use  of  muscles  required  by 
claimant's  work  was  a  contributing  cause  of  his  disability,  which  was  also  due 
to  a  pre-existing  rheumatic  condition,  and  to  getting  wet  in  a  storm,  and  his 
labor  was  not  of  a  kind  to  have  injured  one  performing  it,  requiring  no  more 
exertion  than  ordinary  duties,  it  was  held  that  his  incapacity  was  not  due  to 
any  injury  arising  from  the  employment.  In  Foust  v.  Hartford  Builders' 
Finish  Co.,  1  Conn.  Comp.  Dec.  512  (affirmed  by  superior  court  on  appeal),  it 
was  held  on  medical  testimony  somewhat  uncertain  that  the  claimant's 
death  had  not  been  sufficiently  shown  to  have  been  due  to  sudden  and  fre- 
quent changes  of  temperature  required  by  his  work,  to  warrant  an  award 
thereon. 

"Counsel  *  *  *  contend  that  the  award  should  not  have  been  made, 
for  the  reason  that  the  testimony  shows  that  the  attack  of  delirium  tremens, 
and  not  the  injury,  was  the  proximate  cause  of  his  death.  The  record  con- 
tains the  testimony  of  four  physicians,  who  appeared  to  be  qualified  to  speak 
on  such  matters,  and  they  gave  it  as  their  opinion  that  the  attack  of  delirium 
tremens  was  caused  by  the  injury ;  further  that  it  was  not  unusual  for  deli- 
rium tremens  to  develop  about  60  hours  after  an  injury,  when  the  secondary 
shock  sets  in,  with  patients  who  had  been  in  the  habit  of  using  alcoholic 
liquors.  Two  physicians  who  testified  for  the  defendants  disagreed  with 
this  view,  but  the  record,  taken  as  a  whole,  is  very  persuasive  that  the  de- 
ceased would  not  have  developed  delirium  tremens  when  he  did,  had  it  not 
been  for  the  injury  and  the  shock  which  followed  it.  The  fact  that  his  sys- 
tem had  been  so  weakened  by  his  intemperate  habits  that  it  was  unable  to 
withstand  the  effects  of  the  injury  does  not  thereby  shift  the  proximate  cause 
of  death  from  his  injury  to  his  intemperate  habits.  McCahill  v.  N.  Y.  Trans- 
portation Co.,  201  N.  Y.  221,  94  N.  E.  616,  48  L.  R.  A.  (N.  S.)  131,  Ann.  Cas. 
1912A,  961.  It  is  said  by  counsel  that  this  case  is  similar  to  that  of  McCoy 
V.  Michigan  Screw  Co.,  180  Mich.  454,  147  N.  W.  572,  L.  R.  A.  1916A,  323. 
The  cases  are  dissimilar  in  the  material  respect  that  in  the  case  cited  the 
claimant  by  his  own  act,  after  receiving  the  injury,  communicated  gonorrhoeal 
germs  to  his  eye  by  rubbing  it,  in  consequence  of  which  he  lost  the  use  of  it. 
It  was  clearly  his  own  act  after  the  injury  which  caused  the  loss  of  his  eye. 
We  are  of  the  opinion  that  the  finding  of  the  board  upon  this  question  should 
Hon. Comp. — 31 


§  127  workmen's  compensation  482 

a  recovery  to  have  a  negligent  act  stand  as  the  cause  of  an  injury, 
it  did  no  harm  to  characterize  causation  in  part  at  least  in  terms  of 

not  be  disturbed."  Bird,  J.,  in  Kamlow  v.  Moon  Lake  Ice  Co.  (Micli.)  158  N. 
W.  1027. 

While  the  Commission  has  no  power  to  presume  the  occurrence  of  an  ac- 
cident, where  the  accident  is  clearly  established,  the  statutory  presumption 
in  favor  of  the  applicant  applies  in  determining  whether  the  death  resulted 
from  the  accident  or  from  a  disease  naturally  and  unavoidably  i-esulting 
therefrom.  (Wk.  Comp.  Act,  §  21)  La  Fluer  v.  Wood,  The  Bulletin,  N.  Y.,  vol. 
1,  No.  7,  p.  7.  Where  a  workman,  who  was  wet  through  while  fighting  fire  on 
his  employer's  premises,  continued  at  work  for  20  days,  complaining  part  of 
the  time  to  his  wife  of  pains  in  his  side,  and  then  developed  lobar  pneumonia 
and  died,  he  having  been  exposed  to  bad  weather  in  the  meantime  and  having 
no  fever  until  the  day  he  quit  work,  it  was  held  the  disease  was  not  caused  by 
the  exposure  while  fighting  fire.  Tiedman  v.  Chelsea  Fiber  Mills,  The  Bul- 
letin, N.  Y.,  vol.  1,  No.  10,  p.  16.  In  Broderick  v.  Southern  Pacific  Co.,  4  N. 
Y.  St.  Dep.  Rep.  371,  it  was  held  that  tetanus  causing  death  resulted  from  a 
compound  fracture  and  laceration  of  the  workman's  foot,  sustained  while 
handling  lumber,  a  part  of  which  fell  on  his  foot. 

Where  the  regular  duties  of  a  watchman  in  a  bank  included  cleaning  up, 
and  cleaning  brass  cuspidors,  and  on  a  certain  evening  he  called  on  a  clerk 
in  one  of  the  offices,  and  while  there  said  he  had  pricked  his  thumb  while 
cleaning  cuspidors,  and  later  died  from  blood  poison  which  developed,  death 
was  shown  to  have  resulted  from  an  accident  received  in  the  course  of  the 
employment.  Patch  v.  First  National  Bank  of  Milwaukee,  Rep.  Wis.  Indus. 
Com.  1914r-15,  p.  9. 

Where  a  workman  fell  from  a  cart  without  any  apparent  cause,  and  died 
nine  days  later,  and  the  only  medical  evidence  was  that  death  had  not  been 
caused  by  the  accident,  but  did  not  explain  the  cause  of  death,  it  was  held 
that  the  burden  of  proof  was  not  discharged.  Brown  v.  Kidman  (1911)  4  B. 
W,  C.  C.  199,  C.  A.  Where  a  workman  injured  his  ankle  by  a  fall  from  a 
ladder,  and  after  being  in  bed  for  a  month  died  of  appendicitic  peritonitis, 
and  the  medical  evidence  conflicted  as  to  whether  the  disease  was  caused  by 
his  accident,  there  was  sufficient  evidence  that  death  resulted  from  his  inju- 
ries. Euman  v.  Dalziel  &  Co.  (1913)  6  B.  W.  C.  C.  900,  Ct.  of  Sess.  Where 
an  operation  upon  a  coal  heaver,  who  had  been  injured  by  a  rush  of  coal, 
disclosed  appendicitis  of  long  standing,  and  a  recent  perforation  of  the 
bowels,  and  a  post  mortem  examination  after  his  death  three  days  later  re- 
vealed a  second  perforation,  which  had  caused  the  death,  and  which  must 
have  occurred  at  least  12  hours  after  the  operation,  there  was  sufficient  evi- 
dence of  death  resulting  from  the  injury.  Woods  v.  Wilson  &  Sons  Co.,  Ltd. 
(1915)  S  B.  W.  C.  C.  2SS,  H.  L.,  and  (1913)  G  B.  W.  C.  C.  750,  C.  A.  Where 
an  injured  workman  died  from  a  stroke  of  apoplexy  a  fortnight  after  he  re- 


483  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION  DUE  §    127 

neglig-ence.  But  when,  as  under  the  Compensation  Act,  no  act  of 
neglig-ence  is  required  in  order  to  recover  the  element  of  negligence, 

turned  to  work,  there  was  not  sufficient  proof  tbat  death  resulted  from  his  ac- 
cident. Warnock  v.  Glasgow  Iron  &  Steel  Co.,  Ltd.  (1904)  6  F.  474,  Ct.  of  Sess. 
Where  a  gardener  suffered  continual  pain  from  a  wound  in  his  foot,  caused 
by  a  nail  which  he  had  stepped  on  while  at  work,  and  a  month  later  died  of 
tetanus,  there  was  evidence  that  death  resulted  from  the  injury.  Walker  v. 
Mullins  (1909)  1  B.  W.  C.  C.  211,  C.  A.  Where  a  workman  who  had  his  hand 
punctured  died  thi-ee  months  later  of  erysipelas,  but  there  was  no  evidence 
that  it  was  due  to  the  puncture,  the  medical  referee  saying  it  might  or  might 
not  have  been,  there  was  no  evidence  of  death  resulting  from  the  injury. 
Hugo  V.  Larkins  &  Co.  (1910)  3  B.  W.  C.  C.  228,  C.  A. 

8  6  Lohrke  V.  Benicia  Iron  Wks.,  1  Cal.  I.  A.  C.  Dec.  261 ;  Wallace  v.  Regents 
of  University  of  California,  1  Cal.  I.  A.  C.  Dec.  97. 

The  essential  connecting  link  of  direct  causal  connection  between  the  per- 
sonal injury  and  the  employment  must  be  established  before  compensation 
can  be  allowed  The  injury  must  be  the  result  of  the  employment  and  flow 
from  it  as  the  inducing  proximate  cause.  The  rational  mind  must  be  able  to 
trace  the  resultant  injury  to  a  proximate  cause  set  in  motion  by  the  employ- 
ment and  not  by  some  other  agency ;  otherwise  there  can  be  no  recovery.  In 
re  Madden,  222  Mass.  487,  111  N.  E.  379 ;  In  re  Von  Ette,  223  Mass.  56,  111  N. 
E.  697 ;  Com.  v.  Mink,  123  Mass.  422,  25  Am.  Rep.  109 ;  Sponatski's  Case,  220 
Mass.  526,  108  N.  E.  466,  L.  R.  A.  1916A,  333 ;  Furnivall  v.  Johnson's  Iron  & 
.Steel  Co.,  Ltd.,  5  B.  \\\  C.  C.  43. 

The  burden  of  proof  is  on  the  applicant  to  show  that  an  industrial  accident 
was  the  proximate  cause  of  the  injury  complained  of.  A  failure  to  report  an 
injury  at  the  time  it  happens  and  for  an  unreasonable  time  afterward  makes 
necessai-j'  the  corroboration  of  the  testimony  of  the  injured  party.  Armiger  v. 
Townsend-Davis  Baking  Co.,  1  Cal.  I.  A.  C.  Dec.  55 ;  Holden  v.  Maryland 
Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  14. 

Sufficiency  of  proof  of  proximate  cause. — Where  a  workman  in  good  health 
discovered,  two  days  after  an  unusually  heavy  lift  in  the  course  of  his  work, 
that  he  was  ruptured,  and  died  from  a  surgical  operation  to  relieve  it,  the  op- 
eratmg  surgeon  saying  that  the  rupture  was  caused  by  a  lift,  there  was  suf- 
ficient evidence  to  establish  a  personal  injury  by  accident  in  the  course  of  em- 
ployment. Poccardi  v.  Public  SeiTice  Commission,  75  W.  Va.  542,  84  S.  K. 
242,  L.  R.  A.  1916A,  299.  Ordinarily  varicocele  comes  through  gradual  de- 
velopment, and  afflicts  men  who  have  to  stand  upon  their  feet ;  but  it  is  con- 
ceded by  competent  medical  authorities  that  it  may  result  from  an  accident. 
In  view  of  the  testimony  of  the  attending  physician  as  to  the  nature  and  ex- 
tent of  applicant's  injuries  caused  by  the  accident,  the  previous  medical  his- 
tory of  applicant,  nature  of  his  previous  employment,  and  character  of  his 


§127  workmen's  compensation  484 

namely,  reasonable  anticipation,  contained  in  the  term  'proximate 
cause,'  must  be  eliminated  therefrom,  and  the  phrase  'where  the 

claim  for  compensation,  the  Commission  held  that  the  varicocele  was  shown 
to  have  been  proximately  caused  by  accident.  Mitchell  v.  McNab  &  Smith,  1 
Cal.  I.  A.  C.  Dec.  116.  Where  the  post  mortem  examination  showed  that  the 
cause  of  death  was  the  bursting  of  a  small  aneurism  of  the  aorta,  and  that 
the  aneurism  had  existed  some  time  before  the  accident,  and  the  medical 
history  of  the  deceased  shows  that  three  days  before  death  the  deceased  had 
strained  himself,  by  very  heavy  lifting,  and  complained  thereafter  of  the 
straining,  pain,  and  discomfort,  this  evidence,  together  with  the  medical  tes- 
timony produced,  was  held  to  warrant  the  finding  that  at  the  time  of 
the  heavy  lifting  the  increased  blood  pressure  from  the  unusual  exertion 
caused  the  inner  linings  of  the  aneurism  of  the  aorta  to  give  way,  and  that 
the  subsequent  bursting  of  the  final  coat  of  the  outer  wall,  causing  death, 
followed  naturally  and  proximately  from  such  heavy  lifting  done  in  the 
course  of  the  employment.  Draper  v.  Lore  &  Co.,  1  Cal.  I.  A.  C.  Dec.  132. 
Testimony  of  the  injured  man  that  he  was  injured  on  January  18,  1914,  by 
a  fall  upon  his  elbow,  which  did  not  occasion  disability  until  April  9,  1914, 
together  with  the  testimony  of  two  witnesses  to  the  fall,  and  the  evidence  of 
the  attending  physician  that  the  development  of  the  later  injury  was  con- 
sistent with  the  history  given,  and  of  the  opinion  of  the  commissioner  taking 
the  testimony  as  to  the  appearance  of  the  applicant  and  his  witnesses  as  to 
veracity,  established  the  fact  of  injury  in  the  course  of  the  employment  as  the 
proximate  cause  of  the  later  disability.  (Commissioner  Weinstock  dissenting) 
Johnson  v.  Sudden  &  Christenson,  1  Cal.  I.  A.  C,  Dec.  422.  Evidence  that  a 
woman  was  employed  m  a  restaurant,  part  of  her  duties  being  to  operate  a 
dumb-waiter,  that  prior  to  any  definite  illness  she  complained  of  feeling  ill 
and  of  finding  the  heavy  lifting  of  the  dumb-waiter  too  hard  for  her,  that 
on  a  Saturday  afternoon  she  went  to  her  home  complaining  of  illness,  and  on 
the  following  day  was  taken  seriously  ill  with  acute  dilatation  of  the  heart, 
was  insuflicient  to  prove  that  the  heart  trouble  was  proximately  caused  by  an 
accident  occurring  in  the  course  of  the  employment.  Ilallett  v.  Jevne  Co.,  2 
Cal.  I.  A.  C.  Dec.  231.  Evidence  that  an  employe  fell  about  three  feet  from  a 
plank,  striking  the  ground  in  a  sitting  position,  and  complained  of  pain  and 
stiffness  for  a  few  days,  and  was  taken  with  convulsions  approximately  a 
week  later,  and  died  ten  days  thereafter  from  pneumonia,  was  insufficient  to 
show  that  the  pneumonia  and  death  were  proximately  caused  by  the  accident. 
Senter  v.  Klyce,  2  Cal.  I.  A.  C.  Dec.  704.  Where  the  evidence  of  six  witnesses 
for  the  defendant  in  general  agreement  was  in  direct  conflict  with  the  evi- 
dence of  one  witness  for  the  applicant,  and  the  facts  related  in  the  testimony 
of  the  one  witness  are  not  reasonably  probable,  the  evidence  of  the  applicant  is 
insuflic\ent  to  establish  the  alleged  accident  as  the  proximate  cause  of  the 
injury.    Radley  v.  Nephew,  2  Cal.  I.  A.  C.  Dec.  78.    Evidence  that  an  employe 


485  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUE  §    127 

injury  is  proximately  caused  by  accident'  used  in  the  statute  must 
be  held  to  mean  caused  in  a  physical  sense,  by  a  chain  of  causation 

was  injured  by  a  falling  piece  of  wood  striking  him  a  glancing  blow  upon 
the  left  side  of  his  head,  and  that  after  a  few  moments'  dizziness  he  returned 
to  work  and  continued  work  for  some  months  thereafter,  but  subsequently 
became  ill  with  fainting  spells  and  dizziness,  and  was  found  to  be  suffering 
from  epileptic  seizures,  and  that  an  operation  showed  the  existence  of  a 
slight  depressed  fracture  of  the  inner  plate  of  the  skull,  and  that  the  accident 
was  considered  trivial  at  the  time  and  produced  no  effect  compatible  with 
fracture  of  the  skull,  and  that  the  epilepsy  did  not  arise  until  some  time  after 
the  supposed  accident,  and  that  the  applicant  had  complained  of  some  of  the 
symptoms  indicated  prior  to  the  injury,  was  insufficient  to  prove  that  the 
epilepsy  was  of  traumatic  origin  and  was  received  at  the  time  of  the  blow 
testified  to.  (Commissioner  Will  J.  French  dissenting)  Larson  v.  Powers,  2 
Cal.  I.  A.  C.  Dec.  265.  Evidence  that  an  employ§,  engaged  in  operating  an 
elevator,  imagined  that  he  saw  a  fellow  employe  about  to  be  killed  by  the 
elevator,  and  immediately  sustained  a  stroke  of  paralysis,  resulting  later  in 
his  death,  and  medical  testimony  that  the  paralysis,  due  to  a  hemorrhage  in 
the  brain,  might  be  caused  either  by  severe  mental  shock,  as  contended,  or  by 
a  cerebral  embolism  due  to  a  former  diseased  heart  condition,  in  which  case 
the  supposed  mental  shock  might  never  have  occurred  in  fact,  but  be  purely 
a  hallucination  due  to  the  cerebral  embolism,  was  insufficient  to  prove  that 
the  paralysis  and  death  was  caused  by  accident  arising  out  of  the  employ- 
ment. Keck  V.  Morehouse,  2  Cal.  I.  A.  C.  Dec.  264.  Where  an  employe  had 
been  engaged  on  his  knees  in  painting  the  deck  of  a  boat,  and  bursitis  and 
infection  developed  in  the  knee,  and  medical  experts  testified  that  the  injury 
could  only  come  from  accident  in  such  employment,  then,  although  no  acci- 
dent can  be  definitely  proven,  the  cause  of  the  injury  was  sufficiently  con- 
nected with  the  employment  as  an  accidental  cause.  Porter  v.  Anderson,  1 
Cal.  I.  A.  C.  Dec.  60S.  Evidence  that  the  applicant  fell  upon  his  elbow  on 
January  18,  1914,  and  that  the  elbow  was  sore  for  four  or  five  days,  and 
then  ceased  to  trouble  bim  seriously  until  March  2S,  when  a  bursa  developed, 
which  necessitated  an  operation  for  its  drainage  and  reduction,  showed  that 
the  fall  was  the  proximate  cause  of  such  bursa.  Johnson  v.  Sudden  &  Chris- 
tenson,  1  Cal.  I.  A.  C.  Dec.  422.  Where,  a  few  weeks  after  the  splashing  of 
hot  grease  in  the  right  eye  of  an  employe,  it  is  found  that  complete  blindness 
in  that  eye  exists,  but  a  thorough  examination  fails  to  show  any  evidence  of 
burn  on  the  eyelids,  cornea,  or  conjunctiva,  and  the  opinion  of  physicians 
was  that  the  injury  was  the  result  of  systemic  condition,  and  not  the  acci- 
dent, this  evidence  was  insuflicient  to  prove  that  the  accident  was  the  prox- 
imate cause  of  the  disability.  Taddei  v.  Schmitz's  Estate,  2  Cal.  I.  A.  C. 
Dec.  .592.  Testimony  of  all  the  medical  experts  concerned  in  the  cas(j  was 
conclusive  of  the  fact  that  death  of  applicant's  husband,  seven  weeks  after 


§  127  workmen's  compensation  486 

which  both  as  to  time,  place,  and  effect  is  so  closely  related  to  the 
accident  that  the  injury   can   be   said  to  be   proximately   caused 

a  minor  accident  received  in  the  course  of  his  employment,  was  due  to  nat- 
ural causes,  and  not  caused  proximately  or  remotely  by  said  accident.  Far- 
rish  V.  Nugent,  1  Cal.  I.  A.  C.  Dec.  98.  In  Frabbie  v.  Freeburg,  1  Conn. 
Comp.  Dec.  614  (affirmed  by  superior  court  on  appeal),  where  the  medical 
testimony  showed  a  causal  connection  between  the  striking  of  a  member  of 
claimant's  body  by  a  piece  of  stone  while  at  his  worlt  and  the  tuberculosis 
necessitating  its  amputation,  but  failed  to  show  any  connection  between  the 
injury  and  tuberculosis  of  other  members,  compensation  was  awarded  for 
incapacity  due  to  the  loss  of  the  one  member  only.  In  Cody  v.  Beach,  1 
Conn.  Comp.  Dec.  447,  where  two  physicians  who  had  known  claimant  many 
years,  and  one  who  had  not,  testified  that  his  present  condition  was  due  to 
the  injuries  received,  against  one  who  had  never  seen  claimant  until  short- 
ly before  the  hearing  and  testified  that  the  disability  was  due  to  old  age 
and  nephritis,  it  was  held  the  causal  connection  was  established.  In  Sin- 
sigalli  V.  Suzio,  1  Conn.  Comp.  Dec.  455,  where  a  workman  claimed  to  have 
torn  the  ligaments  from  the  scapula  while  doing  ordinary  shoveling,  and 
his  physician  testified  the  injury  might  have  been  so  caused,  the  commis- 
sioner, considering  this  claim  and  evidence  repugnant  to  everyday  experience 
and  common  knovvledge,  called  an  independent  expert,  who  testified  the  injury 
could  only  be  due  to  a  sevei'e  strain,  or  infection,  and  on  this  testimony  held 
the  burden  of  proof  had  not  been  discharged.  In  Flaherty  v.  Locomobile  Co. 
of  America,  1  Conn.  Comp.  Dec.  354,  where  a  workm.an,  whose  duties  required 
the  lifting  of  pans  or  trays  weighing  from  100  to  200  pounds,  complained  sev- 
eral times  to  his  foreman  of  pains  in  his  back  and  severe  headaches,  and 
medical  evidence  was  to  the  eftect  that  his  physical  condition  very  prob- 
ably resulted  from  a  strain  such  as  might  be  sustained  in  such  an  employ- 
ment, the  injury  was  held  to  be  the  effect  of  a  strain  due  to  his  employ- 
ment. In  Alton  v.  Hopkins  &. Allen  Arms  Co.,  1  Conn.  Comp.  Dec.  378,  where 
the  workman  died  of  chronic  hypertrophy  of  the  liver,  and  his  widow  made 
the  claim  that  the  disease  was  due  to  the  breathing  of  acid  fumes  about  the 
work  of  the  deceased  in  respondent's  browning  department,  but  the  physi- 
cian who  made  a  post  mortem  examination  said  he  had  never  heard  of  a 
case  of  such  disease  caused  by  breathing  acid  fumes,  and  did  not  think  it 
could  be  so  caused,  it  was  held  the  claimant's  burden  to  show  a  causal 
connection  between  the  death  and  the  employment  was  not  discharged. 
Where  the  accident  alleged  was  not  such  as  would  be  likely  to  cause  the 
condition  revealed  by  an  operation  upon  the  workman,  and  though  a  possi- 
ble cause,  was  a  very  improbable  one,  the  claim  for  compensation  was  dis- 
missed. Oberts  v.  Wisconsin  Telephone  Co.,  Rep.  Wis.  Indus.  Com.  1914-15, 
p.  24.  Where  there  was  a  fall  of  stone  in  a  collier's  shift,  and  four  hours 
later  "he  went  home  from  work  with  an  abraded  thumb  and  a  red  patch  on 


487  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION  DUE  §    128 

thereby.  To  incorporate  into  the  phrase  'proximately  caused  by 
accident'  all  the  conceptions  of  proximate  cause  in  the  law  of  negli- 
gence would  be  to  lug  in  at  one  door  what  the  Legislature  industri- 
ously put  out  at  another.  Proximate  cause,  under  the  law  of  neg- 
ligence, always  has  to  be  traced  back  to  the  conduct  of  a  responsi- 
ble human  agency ;  under  the  Compensation  Act  the  words  'proxi- 
mately caused  by  accident'  in  terms  relate  to  a  physical  fact  only, 
namely,  an  accident.  Hence,  if  the  injury  or  death  can  be  traced 
by  physical  causation  not  too  remote  in  time  or  place  to  the  acci- 
dent, then  such  injury  or  death  was  proximately  caused  by  the  ac- 
cident, irrespective  of  any  element  of  reasonable  anticipation.  The 
term  'proximately'  was,  no  doubt,  used  to  exclude  physical  causes 
so  remote  in  time  or  place  or  both  as  to  make  them  of  doubtful 
value  in  tracing  the  relation  between  cause  and  effect."  ^^ 

§  128.     When  proximate  cause  of  disease 

An  injury  or  disease  is  not  compensable  where  the  accident  is 
merely  the  occasion  of  or  coincident  with  the  resulting  disability 
or  death,  and  not  the  cause  thereof,^^  as  where  the  real  cause  is  a 

his  wrist,  caused  by  incipient  blood  poisoning,  but  tlie  medical  evidence  was 
that  the  infection  must  have  taken  place  at  least  twelve  hours  before,  it  was 
held  that  the  burden  of  proof  was  not  discharged.  Jenkins  v.  Standard  Col- 
liery Co.,  Ltd.  (1912)  5  B.  W.  C.  C.  71,  C.  A. 

8  7  City  of  Milwaukee  v.  Industrial  Com.,  160  Wis.  238,  151  N.  W.  247. 

8  8  Where  a  chauffeur  suffers  from  acute  gastric  ulcer,  such  as  often,  ac- 
cording to  expert  testimony,  punctures  the  wall  of  the  stomach,  then,  though 
the  employ^  suffers  a  puncture  of  the  wall  of  his  stomach  immediately  after 
exertion  in  cranking  his  employer's  automobile,  such  injury  is  not  proxi- 
mately caused  by  the  exertion ;  it  is  only  the  occasion,  and  not  the  cause, 
and  the  injury  is  not  compensable.  Chenoweth  v.  Mitchell,  2  Cal.  I.  A.  C. 
Dec.  75.  Where  the  workman,  following  an  accident,  was  suffering  from 
vertigo,  but  the  uncontroverted  medical  evidence  was  that  there  had  been  no 
fracture  of  the  skull  or  concussion  of  the  brain,  and  that  the  vertigo  was 
due  to  arterio-sclerosis,  which  is  not  caused  by  accident,  the  vertigo  should 
not  be  considered  as  a  disability  resulting  from  the  accident.  Carter  v. 
Llewellyn  Iron  Works,  2  Cal.  I.  A.  C.  Dec.  971.  Where  the  applicant  claimed 
that   the   accident   produced   a  prolapsus   of   the   uterus,    causing   disability 


§  128  workmen's  compensation  488 

natural  one.^^    It  is  otherwise  in  case  of  a  disease  which  is  merely 
incidental  to  the  injury,  where  the  chain  of  causation  is  complete 

which  required  surgical  and  hospital  treatment,  and  the  evidence  showed 
that  she  had  long  been  a  sufferer  from  troubles  of  the  uterus  in  a  most  ag- 
gravated form,  and  there  had  been  no  inability  to  go  on  with  her  duties 
for  two  months  following  the  accident,  such  disability  was  not  proximately 
caused  by  the  accident.  The  injury  was  the  occasion,  and  not  the  cause,  and 
the  prolapsus  was  coincident  with  the  fall  from  the  chair,  rather  than  conse- 
quent upon  it,  at  most  an  aggravation  of  a  chronic  condition.  Ash  v.  Bar- 
ker, 2  Cal.  I.  A.  C.  Dec.  577.  Where  a  workman  fell  and  struck  his  h.^ad,  and 
was  unconscious  for  a  half  hour,  but  thereafter  was  not  incapacitated,  and 
showed  no  symptoms  of  cerebral  trouble,  a  stroke  of  paralysis  and  cerebral 
hemorrhage  three  weeks  after  the  fall,  which  resulted  in  his  death,  was  not 
proximately  caused  by  such  fall.  McAdoo  v.  Cudahy  Packing  Co.,  2  Cal. 
I.  A.  C.  Dec.  512.  Cerebral  hemorrhage  occurring  to  an  employ§  while  in 
the  course  of  his  employment,  where  it  does  not  appear  that  it  was  occa- 
sioned or  contributed  to  in  any  way  by  unusual  effort  or  strain  on  the  part 
of  the  employ^,  but  solely  on  account  of  the  disease  known  as  arterio-scle- 
rosis,  is  not  an  injury  within  the  meaning  of  the  Workmen's  Compensation 
Act.  In  re  Mrs.  Alfred  Haries,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  101. 
Small  pieces  of  steel,  which  lodged  in  the  eye  of  the  operator  of  a  lathe,  were 
not  the  proximate  cause  of  the  loss  of  his  eye,  which  became  infected,  where 
it  was  proven  that  such  workman  was  suffering  from  an  infectious  disease 
which  was  communicated  to  his  eye  by  rubbing  it  with  his  hand.  McCoy  v. 
Michigan  Screw  Co.,  ISO  Mich.  454,  147  N.  W.  572,  L.  R.  A.  1916A,  323. 
Brighfs   disease. — Medical   testimony   showing   that,   where   the   applicant 

8  9  Testimony  of  medical  experts  held  to  establish  that  the  death  of  ap- 
{jlicant's  husband,  five  months  after  an  accident  which  caused  a  concussion 
of  the  brain  and  injuries  to  the  chest,  was  due  to  heart  disease  produced 
by  natural  causes,  and  was  not  caused  proximately  by  the  accident.  Hoover 
V.  Engvick,  2  Cal.  I.  A.  C.  Dec.  875.  Discovery  of  temporary  blindness,  due 
to  hemorrhagic  spots  in  the  retina  of  an  eye,  following  exposure  to  intense 
bright  light,  upon  medical  testimony  was  held  not  to  be  due  to  the  bright 
light,  but  to  natural  ■  causes ;  the  testimony  indicating  that  hemorrhage  of 
the  retina  is  always  due  to  disease  and  never  to  intense  light.  Crouch  v. 
Hitter,  2  Cal.  I.  A.  C.  Dec.  702. 

The  employ^  sprained  his  left  wrist  and  dislocated  the  middle  finger  of 
his  left  hand.  Twelve  days  later  he  was  taken  to  a  hospital,  suffering  from 
typhoid  fever.  He  claimed  compensation  for  the  period  during  which  typhoid 
fever  incapacitated  him,  but  it  was  held  that  there  was  no  causal  relation 
between  the  injury  and  the  disease.  Johnson  v.  Casualty  Co.  of  America, 
2  Mass.  Wk.  Comp.  Cases,  170  (decision  of  Com,  of  Arb.). 


489  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    128 

from  injury  to  death. ^^  All  physical  consequences  and  diseases  re- 
sult from  an  injury  when  there  is  a  causal  connection  between 
them."  It  does  not  prevent  disability  or  death  from  being  due 
to  an  injury  arising  out  of  the  employment  that  the  immediate  cause 
was  a  disease,  where  the  disease  or  its  consequence  was  caused  by 

was  injured  by  a  fall  and  fiA^e  days  later  a  condition  of  acute  Bright's 
disease  developed,  but  there  was  no  evidence  of  pliysical  injury  to  the 
kidneys,  such  as  would  be  shown  by  the  presence  of  blood  in  the  urine, 
etc.,  wag  held  to  establish  that  the  accidental  injury  is  not  the  proximate 
cause  of  the  kidney  trouble,  but  merely  coincident  with  it.  Acute  Bright's 
disease  is  probably  never  of  traumatic  origin.  Husvisk  v.  Simms,  1  Cal.  I. 
A.  C.  Dec.  266.  The  employe  received  a  personal  injury  by  reason  of  a  strain 
while  pulling  a  bale  of  burlap,  and  later  became  incapacitated  for  work  be- 
cause of  a  condition  of  Bright's  disease.  The  evidence  showed  that  said  em- 
ploye was  suffering  from  a  diseased  condition  of  the  heart,  lungs,  and  kid- 
neys, all  symptoms  of  chronic  Bright's  disease,  having  no  causal  relation 
with  the  injury.  It  was  held  that  the  employe  was  not  entitled  to  compen- 
sation. Lima  v.  iEtna  Life  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  800  (de- 
cision of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.). 

"0  If  a  disease  resulting  in  death  is  the  effect  of  an  accident,  so  as  to  be 
a  mere  link  in  the  chain  of  causation  between  the  accident  and  death,  the 
death  is  attributable,  not  to  the  disease,  but  to  the  accident  alone.  Rep. 
Nev.  Indus.  Com.  1913-14,  p.  25. 

Where  the  deceased  had  developed  a  blister  upon  his  heel,  caused  by  rub- 
ber 'boots  furnished  by  the  employer,  and  the  blister  became  infected,  and 
subsequently  Bright's  disease  developed  and  death  resulted,  but  the  medical 
evidence  established  that  the  injury  and  infection  of  the  heel  had  poisoned 
the  blood  stream  and  caused  the  Bright's  disease,  the  disease  was  incidental 
to  the  injury,  and  the  chain  of  causation  was  complete  from  injury  to  death. 
AVheadon  v.  Red  River  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  640.  Where  an  em- 
ploye, in  good  health  and  without  signs  of  stomach  and  duodenal  trouble  re- 
ceived a  blow  in  the  region  of  the  stomach  and  duodenum,  and  was  at  once 
and  thereafter  affected  with  severe  pains  and  continuous  disability,  the 
blow  having  been  severe  enough  to  cause  internal  injuries,  and  two  months 
later  his  ailment  was  diagnosed  as  a  duodenal  ulcer,  it  being  only  conjectural 
that  such  an  ulcer  existed  at  the  time  of  the  accident,  or,  if  it  did  then  ex- 
ist in  a  dormant  state,  that  it  would  have  become  acute  or  worse  without 
aggravation  by  reason  of  such  a  blow,  the  accident  was  the  proximate  cause 
of  the  disability.    Snyder  v.  Pacific  Tent  &  Awning  Co.,  3  Cal.  I.  A.  C.  Dec.  1. 

«i  Larke  v.  John  Hancock  Mut.  Life  Ins.  Co.,  90  Conn.  303,  97  Atl.  320. 


g  128  workmen's  compensation  490 

the  injury  or  by  lessened  vitality  due  to  the  injury.^^     A  workman 
is  as  much  entitled  to  compensation  if  death  results  from  exposure 

92  A  severe  accidental  injury,  wliicli,  thougli  it  does  not  incapacitate  the 
employe,  exposes  him  to  disease  and  so  weakens  him  that  he  is  unable  to 
withstand  it,  may  thus  give  rise  to  a  disability  for  which  compensation  is 
payable.  In  re  Atkinson,  Op.  Sol.  Dept.  of  L.,  235.  It  is  unreasonable  to 
deny  compensation  merely  because  the  physical  condition  of  the  injured  per- 
son is  such  as  to  predispose  him  to  some  ailment  which  is  also  a  natural 
concomitant  of  the  injury  received.     In  re  Osgood,  Op.  Sol.  Dept.  of  L.  391. 

Bronchitis. — Where  a  workman  took  bronchitis  and  died,  thirteen  months 
after  an  accident  which  left  him  in  a  debilitated  condition,  the  bronchitis 
being  fatal  only  in  consequence  of  his  weakened  physical  condition,  his  death 
was  the  result  of  the  accident.  Thoburn  v.  Bellington  Coal  Co.,  Ltd.  (1912) 
5  B.  W.  C.  C.  128,  C.  A. 

Pneumonia. — If  an  employ^  contracts  pneumonia,  due  to  exposure,  his 
pneumonia  is  not  the  result  of  any  injury,  and  therefore  he  is  not  entitled 
to  compensation.  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  26.  Death 
from  lombar  pneumonia,  following  inhalation  of  smoke  and  a  wetting  re- 
ceived by  a  member  of  a  fire  brigade  while  fighting  fire  to  protect  his  em- 
ployer's property,  was  caused  by  an  injury  arising  out  of  the  employment. 
In  re  McPhee,  222  Mass.  1,  109  N.  E.  G33.  The  employe  received  a  scratch 
from  the  pin  in  a  price  tag  at  his  place  of  employment  on  April  2,  and  died 
on  May  1,  as  the  result  of  an  attack  of  pneumonia,  which  the  claimant  al- 
leged to  be  due  to  a  condition  of  sepsis  which  followed  the  scratch.  It  was 
held  that  there  was  no  causal  connection  between  the  pneumonia  and  the 
injury,  Currie  v.  Royal  Indemnity  Co.,  2  Mass.  Wk,  Comp.  Cases,  174  (de- 
cision of  Com.  of  Arb.,  aflirmed  by  Indus.  Ace,  Bd.).  The  evidence  showed 
that  the  employe  had  received  a  severe  strain,  and  became  partially  paralyz- 
ed thereby,  and  that  for  a  year  following  the  injury  he  was  totally  incapac- 
itated for  labor.  About  two  days  before  he  died  he  contracted  pneumonia, 
and  died  as  a  consequence  thereof.  He  was  unable,  because  of  his  ex- 
hausted vitality  and  reduced  power  of  resistance,  to  resist  the  attack  of 
pneumonia.  The  death  of  the  employe  was  due  to  the  injury,  the  weak- 
ened condition  due  to  the  injury  rendering  the  pneumonia  fatal.  Merritt  v. 
Travelers'  Insur,  Co.,  2  Mass.  Wk.  Comp.  Cases,  635  (decision  of  Com.  of 
Arb.,  affirmed  by  Indus.  Ace.  Bd.).  Where  an  employe  is  knocked  from  a 
wharf  into  the  water  while  working  to  unload  a  ship,  and  the  injuries  caused 
by  the  blow  are  found  not  to  be  serious,  but  the  employe  dies  subsequently 
from  pneumonia  due  to  the  inhalation  of  water  into  the  lungs,  the  exposure 
while  waiting  for  an  ambulance  and  while  being  taken  to  the  hospital,  and 
a  general  condition  of  weakened  vitality  due  to  overindulgence  in  intoxicants, 
such  death  is  due  proximately  to  the  accident,  and  compensation  may  be 
awarded  therefor.     Smith  v.  McPhee   Stevedoring  Co.,   1  Cal.  I.  A,  C,  Dec. 


491  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    128 

consequent  on  and  attributable  to  an  accident  as  he  would  be  if 
death  had  resulted  from  immediate  physical  injury.^^     Whether  a 

197.    Where  a  lumberman  suffered  a  slight  fracture  of  the  leg  and  was  con- 
fined to  the  hospital,  and  thereafter  was  taken  with  pneumonia   and  died 
as  n  result  thereof,  death  being  hastened  by  his  poor  physical  condition,  it 
was  held  that  such  pneumonia  was  the  result  of  the  confinement  and  inac- 
•tion,  due  to  the  fractured  leg,  and  that  the  death  was  the  proximate  result 
of  the  accident.     Majeau  v.   Sierra  Nevada  Vv'ood  &  Lumber  Co.,  2  Cal.  I. 
A.  C.  Dec.  425.    Where  a  workman,  following  a  severe  accident,  and  shock  was 
exposed  to  stormy  weather  for  an  hour  and  a  half  in  seeking  medical  as- 
sistance,  and   while  at   the  hospital  developed  pleuro-pneumonia,   the   acci- 
dent was  the  proximate  cause  of  the  pneumonia,  and  therefore  the  resulting 
disability  was  compensable.     Decormier  v.  Western  Indemnity  Co.,  2  Cal.  I. 
A.  C.  Dec.  764.     Where  a  workman,  insured  against  "death  from  the  effects 
of  injury  caused  by  accident,"  dislocated  his  shoulder,  and,  being  rendered 
unusually  susceptible  to  cold  by  the  accident,  took  pneumonia  without  ever 
leaving  his  bedroom,  and  died,  it  was  held  that  death  was  due  to  the  effect* 
of  an  injury  caused  by  accident.     In  Bockwich  v.  Housatonic  Power  Co.,  1 
Conn.  Comp.  Dec.  266,  where  the  claimant,  though  showing  that  the  pneu- 
monia causing  the  death  of  her  son,  upon  whom  she  was  dependent,  might 
have  been  due  to  trauma,   or  to  exposure  to  which  the  deceased  was  un- 
usually subjected,  failed  to  produce  sufficient  evidence  to  establish  a  causal 
connection  between  either  of  the  assigned  causes  and  the  death,  beyond  con- 
jecture, it  was  held  that  the  burden  resting  upon  her  to  establish  the  facts 
essential  to  her  recovery  was  not  discharged.    In  Stanley  v.  F.  R.  Wood  and 
W.  H.  Dolson  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  4,  p.  10,  the  workman's 
death,  due  to  pneumonia,  was  held  not  to  have  been  due  to  "such  disease  or 
infection  as  may  naturally  and  unavoidably  result"  from  the  injury  to  las 
finger.     Isitt  v.  Railway  Passengers'  Association  Co.  (18S9)  22  Q.  B.  D.  504. 
Where  a  miner  on  bis  way  to  the  surface  in  consequence  of  a  breakdown  in 
the  shaft  contracted  pneumonia  from  a  chill  while  he  was  waiting  for  the 
cage  in  a   down   draught  of  cold   air,   and   died,   the  injury   resulted  from 
accident.    Watson,  Ltd.,  v.  Brown  (1914)  7  B.  W.  C.  C.  259,  H.  L.,  and  (1913) 
6  B.  W.  C.  C.  416,  Ct.  of  Sess.     Where  a  workman,  after  injuring  his  knee, 
took  over  two  hours  to  walk  the  mile  and  a  quarter  to  his  home,  and,  catch- 
ing  cold,   pneumonia   supervened,   finally   turning   into   chronic   asthma   and 
bronchitis,   rendering  him  unable  to  work,   the  holding  of  the  trial  judgij 
that  his  condition  "was  not  the  natural  result  of  the  injury"  was  a  misdi- 
rection.    Ystradowen  Colliery  Co.,  Ltd.,  v.  Griflith  [1909]  2  K.  B.  533,  C.  A. 
The  death  of  an  undertaker's  workman,  part  of  whose  duty  was  to  lift  cof- 

9  3  Brown  v.  Watson,  Ltd.  (1014)  7  B.  W.  C.  C.  259,  H.  L.,  and  (1913)  6 
B.  W.  C.  C.  416,  Ct.  of  Sess. 


§128  workmen's  compensation  492 

disease  was  proximately  caused  by  an  accident  or  injury,  or  by 
natural  causes,  is  a  question  of  fact  to  be  determined  from  the  facts 
of  the  particular  case.®*    Claims  for  disability  resulting  from  infec- 

fins  out  of  a  van,  who  told  his  doctor  he  had  had  an  accident  while  at  work, 
and  returned  to  work  in  a  bruised  condition,  and  who  died  of  pneumonia 
supervening  on  pleurisy  caused  by  an  injury,  was  caused  by  accident.  Wright 
V.  Kerrigan  (1911)  4  B.  W.  C.  C.  432.  C.  A.  W^here  a  workman,  who  was 
insured,  but  not  against  cases  where  death  was  due  to  "disease  or  other 
intervening  causes,"  was  thrown  from  his  horse  while  hunting  and  wet  to 
the  skin,  and  in  consequence  of  the  loss  of  vitality,  caused  by  the  fall,  look 
pneumonia  on  the  way  home,  and  died,  the  accident  was  the  direct  and 
proximate  cause  of  his  death.  In  re  Etherington  &  Lancashire  &  "Yorkshire 
Accident  Insurance  Co.  [1909]  1  K.  B.  591,  C.  A.  Where  two  doctors  testi- 
fied that  the  death  of  a  workman  from  pneumonia  four  years  after  an  acci- 
dent to  him  was  due  indirectly  to  the  accident,  and  two  others  testified  that 
the  disease  was  due  to  lowered  vitality  caused  by  the  accident,  the  decision 
that  death  did  not  result  from  the  injury  was  sustained.  Taylorson  v.  Frame- 
wellgate  Coal  &  Coke  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  56,  C.  A.  Where  a  work- 
man who  was  injured  had  his  arm  put  into  splints  at  a  hospital  and  was 
then  sent  home,  where  he  died  later  of  pneumonia,  the  finding  of  the  county 
court  judge  that  his  death  did  not  result  from  his  injury  is  conclusive.  Cam- 
eron V.  Port  of  London  Authority  (1912)  5  B.  W.  C.  C.  416,  C.  A.  Where  an 
undertaker's  assistant,  part  of  whose  duty  was  lifting  coffins  out  of  a 
van,  came  home  from  work  in  a  bruised  condition,  and,  after  telling  his  doc- 
tor he  had  had  an  accident  in  moving  a  coffin,  died  of  pneumonia  siiperven- 
ing  on  pleurisy  caused  by  an  injury,  the  accident  arose  out  of  his  employ- 
ment.    Wright  V.  Kerrigan  (1911)  4  B.  W.  C.  C.  432,  C.  A. 

94  W'here  a  gas  fitter,  who  inhaled  coal  gas,  died  a  few  days  later  from 
paralysis,  due  to  cerebral  hemorrhage,  but  had  also  had  a  previous  attack  of 
paralysis  seven  months  before,  the  decision  of  the  county  court  judge  that 
death  was  not  due  to  gas  poisoning  was  the  decision  of  a  question  of  fact 
within  his  power  and  duty.  Dean  v.  London  &  North  Western  By.  Co.  (1910) 
3  B.  W.  C.  C.  351,  C.  A.  "W^here  a  workman  was  thrown  out  of  a  cart,  and 
afterward  was  found  dead  of  syncope  in  the  road  at  the  summit  hill,  but 
there  was  no  direct  evidence  as  to  what  caused  the  syncope,  it  was  not  prov- 
en that  death  resulted  from  the  accident.  Powers  v.  Smith  (1910)  3  B.  W. 
C.  C.  470,  C.  A. 

Ahscess. — Where  petitioner's  arm  was  broken  while  he  was  in  defendant's 
employ,  and  he  was  treated  at  a  hospital  and  the  fracture  united,  but  an 
abscess  developed  on  the  fleshy  part  of  the  thumb,  which  resulted  in  anky*- 
losis  of  the  thumb,  making  it  permanently  useless,  the  permanent  injury  to 
the  thumb  was  due  to  the  accident.     Newcomb  v.  Albertson,  85  N.  J.  Law, 


493  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §328 

tion  are  limited  to  cases  where  there  has  been  some  well-defined  ac- 
cident in  which  it  was  extremely  probable  that  the  infection  origi- 

435,  89  Atl.  928.  Where  an  abscess  forms  as  the  result  of  a  break  in  the  cal- 
lous on  the  palm  of  the  hand,  at  some  time  during  an  employment,  involving 
the  continuous  use  of  a  hammer,  even  though  the  injured  employe  was  not 
aware  of  the  exact  time  when  such  break  occurred,  the  use  of  the  hammer 
was  the  proximate  cause  of  the  injury.  Zavella  v.  Naughton,  2  Cal.  I.  A. 
C.  Dec.  956.. 

Anthrax. — In  Eldridge  v.  Endicott-Johnson  &  Co.,  The  Bulletin,  N.  Y., 
vol.  1,  No.  8,  p.  8,  it  was  held  that  a  workman's  death  from  anthrax  did  not 
result  from  "an  accidental  injury  arising  out  of  and  in  the  course  of  his 
employment  and  such  disease  or  infection  as  may  naturally  and  unavoidably 
result  therefrom"  (Wk.  Comp.  Act,  §  3,  subd.  7),  where  it  appeared  that  he 
would  have  been  immune  from  anthrax  at  the  particular  time  when  he  con- 
tracted it,  had  it  not  been  for  a  prior  injury  from  being  cut  with  the  razor 
while  being  shaved. 

Apoplexy. — Where  a  workman  claimed  to  have  been  injured  by  the  vibra- 
tion of  an  automatic  drill  which  he  was  operating,  and  died  from  a  stroke 
of  apoplexy,  following  either  a  collapse  from  an  embolism  or  a  prior  stroke, 
and,  though  one  might  suspect  that  the  shaking  of  the  drill  caused  the 
apoplexy,  such  conclusion  was  purely  conjectural,  and  the  commissioner  was 
unable  to  convince  himself  that  such  was  the  case,  compensation  was  denied. 
Mohr  v.  Frederick  L.  Cranford,  Inc.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  10. 

Blood  poisoning. — Where  an  employe's  hand  was  bruised,  while  he  was 
at  work,  from  being  caught  between  pieces  of  timber,  and  the  results  of  the 
blood  poisoning  which  set  in  were  proximately  caused  by  accident,  the  in- 
jury was  compensable.  Great  Western  Power  Co.  v.  Pillsbury,  171  Cal.  69, 
151  Pac.  1136,  L.  R.  A.  1916A,  281;  2  Cal.  I.  A.  C.  Dec.  482.  The  evidence 
showed  that  the  deceased  employe  died  on  June  24th  from  gangrene  of  the 
great  toe  spreading  upward  through  the  body,  and  that  the  toe  was  crushed 
by  accident  arising  out  of  the  employment  on  June  6th,  the  gangrene  follow- 
ing in  due  course  thereafter.  The  death  was  proximately  caused  by  acci- 
dental injury  arising  out  of  the  employment.  Meyer  v.  Pacific  Light  & 
Power  Co.,  1  Cal.  I.  A.  C.  Dec.  333.  Where  a  workman  sustains  a  slight 
wound  upon  his  hand  while  at  work,  which  results  in  blood  poisoning,  which 
is  given  proper  medical  treatment  and  pronounced  cured,  and  a  few  days 
thereafter  he  becomes  ill  from  a  retrocecal  abscess  and  subsequently  dies, 
such  evidence,  in  the  present  condition  of  medical  knowledge  upon  the  sub- 
ject, is  insufficient  to  establish  as  a  fact  that  the  retrocecal  abscess  and 
death  were  caused  by  the  prior  infection  in  the  hand.  Olney  v.  West  Side 
Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  272.  In  Coffey  v.  Borden's  Condensed  Milk 
Co.,  1  Conn.  Comp.  Dec.  167,  where  the  employe's  leg  was  broken  by  being 
struck  by  a  piece  of  ice  which  slid  down  the  chute,  and  he  died  in  the  hos- 


§  128  workmen's  compensation  494 

pital  of  blood  poisoning,  the  workman's  poor  pliysical  condition  contributing 
to  his  death,  but  the  injury  being  the  exciting  and  contributing  cause,  it 
was  held  that  there  was  a  causal  connection  between  the  injury  and  death. 
The  claimant,  the  mother  of  the  employe,  did  not  present  any  evidence  which 
would  show  that  the  general  septicaemia  from  which  he  died  had  any  causal 
relation  with  a  personal  injury  arising  out  of  and  in  the  course  of  his  em- 
ployment. An  investigation  made  by  the  Committee  showed,  however,  that 
this  condition  was  due  to  the  injury.  She  was  held  to  be  entitled  to  com- 
pensation. Silva  V.  Travelers'  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  597 
(decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.).  The  widow  testified 
that  on  an  occasion  about  two  years  before  the  date  of  the  hearing  the  em- 
ploye was  bitten  and  poisoned  by  insects  while  in  the  performance  of  his 
work  as  janitor  and  caretaker,  cleaning  a  cellar  in  connection  with  the  prop- 
erty, and  that  his  death  was  a  result  of  the  poisoning  and  infection  from  these 
insect  bites.  The  evidence  showed  that  death  was  due  to  chronic  cardiac 
valvular  disease,  complicated  by  septicjemia,  having  no  causal  connection  with 
the  injury,  as  alleged.  The  Committee  of  Arbitration  held  that  the  death  of 
the  employe  did  not  have  a  causal  relation  with  the  personal  injury.  Camp- 
bell V.  ^tna  Life  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  701  (decision  of  Com.  of 
Vrb.,  affirmed  by  Indus.  Ace.  Bd.).  An  employe  sustained  an  injury  to  his 
foot  while  in  the  course  of  his  employment,  a  gangrenous  condition  devel- 
oped, and  he  died  a  month  later;  the  immediate  cause  of  death  being  "gan- 
grene of  leg,  septicEemia."  It  was  held  the  employe's  death  resulted  from  the 
injury  to  his  foot.  In  re  Winnie  Wilson,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com. 
p.  84.  Where  a  workman  injured  his  foot,  and  erysipelas,  which  is  a  very 
unusual  consequence  of  such  a  wound,  set  in,  causing  blood  poisoning,  which 
in  turn  caused  his  death,  the  death  resulted  from  the  injury.  Dunham  v. 
Clare,  [1902]  2  K.  B.  292,  C.  A. 

Boils.— Where  an  employe,  whose  duties  were  principally  to  wash  dishes 
and  peel  and  prepare  vegetables  for  the  cook  in  a  restaurant,  suffered  a  dis- 
ability from  the  breaking  out  of  boils  on  his  hands,  there  being  no  evidence 
to  show  that  any  boils  developed  where  he  received  any  cuts  or  scratches 
or  bruises,  or  any  other  injury  that  would  admit  of  staphylococcus  infec- 
tion, the  injury  was  held  not  compensable.  Roiph  v.  Morgan,  2  Cal.  I.  A.  C. 
Dec,  543. 

Brain  fro  m  6  ?e.— Claimant  was  thrown  from  a  scaffold  upon  which  he  was 
working  by  an  engine  running  into  it.  He  continued  at  work  for  some  time 
after  reporting  to  the  yard  dispensary,  and  subsequently  developed  brain 
trouble,  causing  incapacity.  It  was  held  that  connection  was  sufficiently  es- 
tablished between  the  injury  and  the  incapacity  caused  by  the  brain  trouble. 
In  re  Smith,  Op.  Sol.  Dept.  of  L.  759.  Where  the  employe,  a  strong  and 
healthy  workman,  who  had  lost  little  time  from  sickness  in  many  years  of 
employment,  felt  a  sudden  severe  pain  in  his  head  while  lifting  a  heavy  keg, 
and  immediately  and  for  some  time  thereafter  suffered  from  mental  derange- 


495  CIRCU:.ISTANCES  UNDER  WHICH   COMPENSATION  DUE  §    128 

ment  and  weakness,  the  Commission  held  upon  conflicting  medical  evidence 
that  his  condition  was  caused  by  the  injury.  Fowler  v.  Risedorph  Bottling 
Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  7,  p.  7. 

Cancer. — Where  an  employe  having  a  small  cancer  in  the  stomach,  of  a 
character  such  as  not  to  cause  death  for  many  years,  received  a  heavy  blow, 
which  inflamed  the  cancer,  increasing  its  size  to  such  an  extent  as  to  ob- 
struct the  ducts  of  the  gall  bladder  and  liver,  and  death  followed  one  month 
after  the  injury,  the  accidental  blow  was  the  proximate  cause  of  the  death. 
Rose  v.  City  of  Los  Angeles,  2  Cal.  I.  A.  C.  Dee.  574.  Where  a  workman,  in 
climbing  over  a  steam  pipe,  fell  straddle  of  it,  and  burned  the  end  of  his 
penis,  and  several  months  later  was  disabled  by  epithelioma,  or  cancer  of 
the  penis,  it  was  held  on  conflicting  medical  testimony,  considering  that 
both  the  accident  and  the  disease  were  of  very  rare  occurrence,  that  the 
disease  was  due  to  the  accident.  Richardson  v.  Builders'  Exchange  Ass'n, 
The  Bulletin,  N.  Y.,  vol.  1,  No.  10,  p.  18.  In  Marcontonio  v.  The  Charles 
Francis  Press,  The  Bulletin,  N.  Y.,  vol.  1,  No.  12,  p.  16,  where  the  employe 
claimed  to  have  slipped  on  the  stairs  and  injured  his  leg  just  24  hours  be- 
fore he  was  found  to  have  cancer  of  the  bone,  but  the  injury  produced  no  dis- 
cernible bruise,  and  medical  e^ddence  was  that  the  disease  could  not  have 
developed  so  soon  after  the  accident,  it  was  held  that  the  claimant  had  not 
established  the  accident  as  the  cause  of  his  disease.  Where  a  dock  la- 
borer was  incapacitated  for  three  mouths  by  being  struck  in  the  back,  and, 
having  two  operations  for  cancer  of  the  kidney,  died  from  the  after-efl'ects 
of  the  second,  and  where  the  medical  testimony  was  conflicting  as  to  the 
origin  of  the  cancer,  there  was  sufficient  evidence  to  support  a  tinding  of 
death  resulting  from  the  injury.  Lewis  v.  Port  of  London  Authority  (1914)  7 
B.  W.  C.  C.  577,  C.  A. 

Epileptic  fit. — Where  a  workman  had  an  epileptic  fit,  and  the  work  that 
he  was  doing  was  of  such  a  character  that  would  contribute,  or  combined 
with  the  fit  would  cause,  the  injury  or  death,  the  employer  was  liable.  Op. 
Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  28. 

Headache.— In  Stampick  v.  American  Steel  &  Wire  Co.,  1  Conn.  Comp.  Dec. 
474,  where  a  workman  claimed  he  had  headaches  which  were  due  to  his  in- 
jury, and  though  this  was  possible,  it  was  unsupported  by  evidence,  it  was 
held  his  burden  of  proof  was  not  discharged. 

Heart  trouUe. — Where  an  employe's  impaired  heart  was  further  injured 
by  her  work,  pulluag  a  carpet,  the  injury  resulted  from  her  work  as  a  proxi- 
mate cause  contributing  thereto,  though  a  healthy  person  would  not  have 
been  affected  by  the  muscular  exertion  required,  by  the  work.  In  re  Mad- 
den, 222  Mass.  4S7,  111  N.  E.  379.  The  employ^  received  a  personal  injury, 
which  resulted  from  the  slipping  of  a  beer  barrel  and  the  striking  of  his  left 
side  against  the  tail  board  of  his  wagon  with  sufficient  force  to  fracture  a 
rib.  This  injury  brought  about  a  lesion  of  the  heart,  which  grew  progressive- 
ly worse,  no  new  cause  intervening,  until  the  date  of  his  death.    The  widow 


§  128  workmen's  compensation  496 

was  entitled  to  compensation.  O'Hare  v.  Employers'  Liability  Assiir.  Corp., 
Ltd.,  2  Mass.  Wk.  Comp.  Cases,  369  (decision  of  Com.  of  Arb.,  affirmed  by 
Indus.  Ace.  Bd.).  An  employ^  received  a  personal  injury  early  in  May  and 
complained  of  pain  in  bis  side.  Relief  was  afforded  by  strapping,  and  the 
employe  reported  for  work.  Later,  in  September,  he  died  from  acute  dilata- 
tion of  the  heart,  due  to  ursemic  poisoning,  having  no  causal  relation  with 
the  injury.  The  widow  was  held  not  entitled  to  compensation.  Lynch  v. 
Travelers'  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  591  (decision  of  Com.  of 
Arb.).  The  employ^  was  of  frail  physique  prior  to  the  time  of  the  injury, 
but  had  been  able  to  perform  her  usual  arduous  tasks  in  a  cotton  mill  for 
many  years.  She  was  then  totally  incapacitated  for  a  long  time  by  reason 
of  a  fall  to  the  floor  of  the  factory  in  which  she  was  employed,  during  which 
time  compensation  was  paid  by  the  insurer.  Then  compensation  was  sus- 
pended, on  the  ground  that  she  was  no  longer  incapacitated  for  work  because 
of  conditions  due  to  the  injury,  but  by  reason  of  a  heart  condition  having 
no  causal  relation  thereto.  The  evidence  showed,  however,  that  there  was  a 
complete  chain  of  causation  between  the  personal  injury  received  by  her  and 
her  present  condition,  and  the  Committee  of  Arbitration  held  that  the  em- 
ploye was  totally  incapacitated  for  work  as  a  result  of  her  injury.  Otot  v. 
American  Mutual  Liability  Ins.  Co.,  2  IMass.  Wk.  Comp.  Cases,  254  (decision 
of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.). 

Typhoid  fever.— In  Tillman  v.  Sperry  Engineering  Co.,  1  Conn.  Comp.  Dec. 
408,  where  deceased  was  taken  sick  in  a  place  where  he  was  especially  ex- 
posed to  sunstroke,  but  there  was  practically  no_  evidence  of  any  stroke, 
death  being  due  to  typhoid  fever,  and  there  was  no  evidence  available  as  to 
how  the  disease  was  contracted,  it  was  held  that  the  claimant  had  not  es- 
tablished a  causal  connection  between  the  death  and  the  employment. 
Where,  though  the  workman  claimed  his  typhoid  fever  was  contracted  from 
drinking  water  in  the  defendant's  camp,  the  evidence  did  not  show  that  the 
germ  causing  the  sickness  came  from  the  water  supplied,  or  from  whence  it 
came,  nor  that  at  the  actual  time  the  disease  was  contracted  the  workman 
was  performing  service  incidental  to  his  employment,  the  facts  were  insuffi- 
cient to  show  an  accident  arising  out  of  the  employment.  Dupreis  v.  Holt 
Lumber  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  32. 

Ulcer. — Where  medical  testimony  and  examination  showed  an  illness  fol- 
lowing a  blow  upon  the  stomach  was  due  to  ulceration  of  the  stomach,  and 
also  that  prior  to  the  happening  of  the  accident  the  injured  employ^  had 
been  treated  for  gastritis,  the  disability  occasioned  by  the  blow  was  due  to 
natural  causes.  McLean  v.  Brooks,  2  Cal.  I.  A.  C.  Dec.  2S8.  In  Melia  v. 
Race  Brook  Country  Club,  1  Conn.  Comp.  Dec.  549,  where  the  fracture  of 
claimant's  leg  caused  blebs  and  ulcers,  and  three  months  after  they  had 
apparently  healed,  but  during  which  time  claimant  was  under  medical  treat- 
ment for  his  leg,  a  deep-seated  infection  set  iu,  the  commissioner,  consider- 
ing all  the  circumstances,  including  the  improbability  of  its  being  due  to 


497  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    129 

nated.^^  A  condition  of  osteo-arthritis  found  to  be  in  existence  for 
a  time  after  an  accident  and  to  be  complicating  the  results  of  the 
injury  does  not  prevent  such  disability  of  the  injured  employe  from 
being  proximately  caused  by  the  accident."'* 

§  129.     When  proximate  cause  of  hernia — Proof 

Whether  hernia  was  proximately  caused  by  accident  depends  on 
the  facts  of  the  particular  case."    The  presumption  is  against  her- 

any  other  cause  in  this  case,  held  that  the  later  infection  was  due  to  the 
injury. 

Sciatica.— Where  a  workman  who  had  never  suffered  from  sciatica  prior 
to  the  injury  to  his  back,  and  after  two  weeks'  work  following  five  months' 
incapacity  from  the  accident  was  compelled  to  quit  work,  and  where  the 
original  lesion  as  indicated  by  the  pain  was  somewhere  in  the  sacroiliac  re- 
gion, and  medical  testimony  was  that  there  were  a  number  of  symptoms 
which  appeared  to  indicate  sacroiliac  trouble,  there  was  testimony  to  sup- 
port the  finding  of  the  Commission  that  the  second  incapacity  was  due  to 
the  original  injury.  Southwestern  Surety  Ins.  Co.  v.  Pillsbury  (Cal.)  158 
Pac.  762. 

9  5  McDonald  v.  Dunn,  2  Cal.  I.  A.  C.  Dec.  71.  Where  a  chambermaid  con- 
tracts dermatitis,  which  results  in  the  infection  of  the  hands,  the  resulting 
disability  is  not  compensable,  if  there  is  no  proof  of  accidental  origin  or  of 
an  opportunity  for  the  infection  to  enter  by  accident.  Id.  Where  a  book- 
keeper received  a  slight  scratch  on  his  thumb,  and  three  days  later  the 
thumb  became  very  painful,  and  serious  infection  was  found  to  exist,  the 
infection  is  proximately  caused  by  accidental  injury  arising  out  of  the  em- 
ployment.   Jameson  v.  Bush,  1  Cal.  I.  A.  C.  Dec.  507. 

In  Gaherty  v.  International  Silver  Co.,  1  Conn.  Comp.  Dec.  403,  where  the 
claimant  attributed  the  infection,  causing  inflammation  of  his  face  and  the 
loss  of  a  finger,  to  water  splashed  on  his  face  and  hands  while  washing  the 
seat  of  a  toilet,  while  in  respondent's  employ,  but  it  was  impossible  at  the 
time  of  the  hearing,  some  ten  months  after  the  injury,  to  determine  the  na- 
ture or  cause  of  the  infection,  it  was  held  the  employe  had  not  sustained  the 
burden  of  proof  vipon  him. 

96  Carmicheal  v.  Hogrefe,  2  Cal.  I.  A.  C.  Dec.  734. 

97  Poppos  V.  Silver  Palace  Theatre  Co.,  2  Cal.  I.  A.  C.  Dec.  397. 

Accident  proximate  cause  of  hernia. — Where  a  janitor,  lifting  a  carpet 
weighing  over  500  pounds,  complained  of  sharp  pain  resulting  from  the 
strain,  and  immediately  ceased  work,  and  upon  examination  soon  after  by  a 
physician  of  his  employer  he  was  found  to  have  a  slight  rupture  of  possible 

HoN.CoMP.— 32 


§  129  workmen's  compensation  498 

nia  being  so  caused,  and  hence  the  burden  of  proof  rests  on  the  ap- 
plicant to  clearly  show  that  the  injury  resulted  from  accident  in- 
immediate  origin,  the  Commission  held  that  the  hernia  was  of  traumatic 
origin,  the  proximate  result  of  the  strain,  and  was  compensable.  Id.  Where 
applicant,  in  boring  horizontal  holes  in  the  timbering  of  a  building  with  a 
heavy  electric  boring  machine,  holds  the  machine  against  his  groin,  and  aft- 
er 12  days  of  such  work  a  small  inguinal  hernia  appears,  due  to  the  irrita- 
tion, such  hernia  is  proximately  caused  by  accident  sustained  in  the  course 
of  the  employment.  Mandell  v.  ^tna  Life  Insurance  Co.,  1  Cal.  I.  A.  C.  Dec. 
265.  A  woman  employg  in  poor  health,  while  operating  an  addressograph 
machine  by  a  foot  lever,  felt  a  sudden  pain  in  her  side  and  had  to  stop  work. 
It  was  held  that  the  protrusion  which  soon  after  developed  in  the  right  side 
was  a  hernia,  resulting  from  the  accident.  Bertram  v.  Crocker  Co.,  2  Cal. 
I.  A.  C.  Dec.  351.  Where  no  unusual  effort  has  been  exerted,  and  the  evidence 
of  traumatic  origin  is  slight,  though  a  hernia  is  found  to  exist,  such  hernia 
is  not  proven  to  have  arisen  from  accident.  Covert  v.  Goldstone,  1  Cal.  I. 
A.  C.  Dec.  618.  Where  a  linotype  operator  who  had  suffered  from  a  hernia 
claimed  that  two  later  hernias  were  caused  by  a  strain  when  he  was  trying  to 
recover  from  a  fall  while  carrying  a  heavy  machine,  and  the  evidence  showed 
very  mild  symptoms  of  hernia  after  the  alleged  injury,  such  evidence  is  in- 
sufficient to  establish  the  accident  as  a  proximate  cause  of  the  injury.  Sef- 
ton  V.  Midway  Driller  Publishing  Co.,  2  Cal.  I.  A.  C.  Dec.  9S7.  In  Maloney 
V.  Waterbury  Farrel  Foundry  &  Machine  Co.,  1  Conn.  Comp.  Dec.  220,  where 
the  deceased  workman  felt  a  sudden  pain  while  lifting  a  heavy  crank  shaft, 
and  after  working  for  part  of  the  week  with  continual  pain  was  found  to 
have  an  inguinal  hernia,  it  was  held  he  had  sustained  a  compensable  injury. 
In  Wentworth  v.  Chamberlain  Co.,  1  Conn.  Comp.  Dec.  588,  where  the  claim- 
ant strained  the  ligaments  of  his  back,  but  such  injury  did  not  prevent  his 
working,  though  causing  pain  and  inconvenience,  and  eleven  days  lat- 
er, while  handling  a  heavy  keg,  the  employe  so  aggravated  his  weakened 
condition  that  total  incapacity  resulted,  it  was  held  the  injury  occurred 
on  the  date  of  the  first  strain.  In  Massa  v.  Crowe,  1  Conn.  Comp.  Dec.  86, 
it  was  held  that  where  the  claimant,  while  lifting  a  heavy  piece  of  granite, 
felt  a  sudden  pain  in  the  pelvic  region,  compelling  him  to  stop  work,  and  on 
an  operation  for  hernia  the  surgeon  found  evidence  that  the  hernia  was  of 
recent  origin,  the  injury  was  compensable. 

Pre-existing  hernia. — Where  a  workman  became  sick  and  suffered  a  pain 
in  the  groin  after  helping  to  lift  a  heavy  truck,  and  was  found  to  be  suffer- 
ing from  an  old  hernia,  but  argued  that  a  new  hernia  had  been  caused  by  the 
strain,  it  was  found  as  a  fact  that  the  incapacity  resulted  from  the  old  her- 
nia, and  not  from  the  accident.  Legge  v.  Nixon's  Navigation  Co.,  Ltd.  (1914) 
7  B.  W.  C.  C.  521,  C.  A.  Where  the  applicant  sustained  an  accidental  hernia 
at  the  exact  site  of  a  prior  hernia,  which  had  been  successfully  operated  on 


499  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION  DUE  §    129 

Stead  of  being  merely  coincidental  with  it.^^  It  is  not  sufficient  to 
establish  as  a  fact  that  a  hernia  or  the  strangulation  of  a  hernia  is 

eight  years  before,  and  had  worked  coutiniTously  since  then  as  a  laborer  with- 
out noticing  any  ill  effects  from  the  operation,  the  later  hernia  is  proximately 
caused  by  the  accident,  and  cannot  be  attributed  to  the  earlier  hernia  and 
operation.  Boggeln  v.  Coronada  Hotel,  1  Cal.  I.  A.  C.  Dec.  276.  Where  an 
employe,  injured  in  an  automobile  accident,  makes  little  complaint  of  his  in- 
juries at  the  time,  and  under  pressure  of  necessity  keeps  at  work  for  some 
weeks  thereafter,  until  taken  ill  with  strangulated  hernia,  death  resulting 
from  such  strangulation,  and  it  is  shown  that  some  years  prior  to  the  happen- 
ing of  the  accident  the  employe  had  been  operated  upon  for  appendicitis  and 
that  that  wound  had  not  entirely  healed,  leaving  a  slight  hernia,  and  that 
such  hernia  had  become  aggravated  at  about  the  time  of  the  automobile  ac- 
cident, such  evidence  is  insufficient  to  establish  the  death  as  a  result  of  the 
automobile  accident.  If  the  hernia  previously  in  existence  had  been  substan- 
tially increased  by  the  accident,  the  pain  at  the  time  of  the  tearing  of  the 
wider  aperture  would  have  been  too  excruciating  and  continuous  to  have  al- 
lowed the  deceased  to  go  on  with  his  work  for  some  time  thereafter.  Kier- 
nan  v.  Turlock  Irrigation  District,  2  Cal.  I.  A.  C.  Dec.  259.  In  Aquilano  v. 
Lambo,  1  Conn.  Comp.  Dec.  145,  where  a  workman  with  a  prior  gi-adually 
developing  hernia  was  thrown  forcibly  against  the  side  of  a  ditch  he  was 
digging  by  the  caving  in  of  the  opposite  bank,  and  shortly  after  was  found 
to  have  an  irreducible  hernia,  it  was  held  that  there  was  a  causal  connection 
between  the  employment,  the  injury,  and  the  hernia,  and  that  hence  it  arose 
out  of  his  employment;  the  Commissioner  saying:  "The  question  is:  Can  it 
fairly  be  said  that  there  is  shovrn  to  exist  any  causal  connection  between  the 
employment  of  the  claunant  prior  to  the  injury,  his  injuries,  and  his  present 
condition?" 

Where  an  operation  for  a  hernia  results  in  a  second  operation  for  a  paral- 
ysis of  the  bowels  and  culminates  in  death,  an  award  for  a  death  benefit 
should  be  giveu  if  the  first  operation  were  necessitated  by  accident  arising 
out  of  and  occurring  in  the  course  of  the  employment.  Hartford  Accident  & 
Indemnity  Co.  v.  Bono,  2  Cal.  I.  A.  C.  Dec.  668. 

98Toney  v.  Williams,  1  Cal.  I.  A.  C.  Dec.  3-lS;  Hagen  v.  Weinstein  Co.,  1 
Cal.  I.  A.  C.  Dec.  615 ;  Mifsud  v.  Palace  Hotel  Co.,  1  Cal.  I.  A.  C.  Dec.  37. 
There  must  be  direct  and  positive  testimony  to  establish  the  accidental  char- 
acter of  a  rupture.  It  is  usually  the  result  of  disease  or  abdominal  weakness. 
The  accident  is  usually  the  occasion  rather  than  the  cause  of  the  injui-y- 
Hertert  v.  Wood  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  58.  To  establish  the  fact 
of  hernia  caused  by  accident  arising  out  of  the  employment,  it  is  necessary  for 
the  injured  employg  to  show  that  the  injury  caused  immediate  disability  by 
reason  of  the  pain  at  the  time  of  the  accident.  Where  the  accident  is  fol- 
lowed by  a  later  development  of  hernia,  the  accident  must  usually  be  regard- 


§129  workmen's  compensation  500 

coincident  with  lifting  or  other  laborious  service,  but  it  must  be 
clearly  established  that  the  lifting  or  other  laborious  service  was 

ed  as  the  occasion  rather  than  the  cause  of  the  injury.    Jost  v.  General  Elec- 
tric Co.,  1  Cal.  I.  A.  C.  Dec.  527. 

Proof  of  proximate  cause  of  hernia. — Inguinal  hernia  is  often  a  matter  of 
slow  growth  and  prenatal  tendencies,  although  it  may  be  caused  by  a  strain 
or  other  injury.  As  it  rarely  develops  in  the  absence  of  a  prenatal  tendency, 
strong  proof  is  always  to  be  required  to  establish  an  industrial  accident  as 
its  cause.  "Where  the  applicant  cannot  remember  any  occasion  of  strain  or 
injury  at  the  time  his  hernia  was  developing,  the  evidence  is  insufficient  to 
establish  an  injury  in  the  course  of  his  employment  as  the  cause  thereof. 
Cieck  v.  Standard  Oil  Co.,  1  Cal.  I.  A.  C.  Dec.  135.  Where  an  employe  testi- 
fies that  he  suddenly  felt  a  sharp  pain  in  his  groin  while  doing  some  heavy 
lifting,  and  employe  left  work  immediately,  making  complaints  to  others  of 
the  happening  of  an  accident,  and  where  he  reaches  his  home  in  considerable 
agony,  and  his  condition  is  diagnosed  by  a  physician,  called  in  at  once,  as 
strangulated  hernia,  and  the  testimony  of  the  physician,  who  later  operated 
for  the  cure  of  the  hernia,  does  not  definitely  establish  that  the  hernia  was 
of  either  new  or  older  origin,  the  evidence  is  sufficient  to  warrant  a  finding 
that  the  hernia  was  proximately  caused  by  accident.  Jorgenseu  v.  Kealy- 
Tibbitts  Construction  Co.,  2  Cal.  I.  A.  C.  Dec.  46.  Where  the  physicians  who 
performed  an  operation  to  cvu-e  hernia  testify  that  it  was  not  of  recent  origin, 
this  being  shown  bj'  the  character  of  the  adhesions  surrounding  the  rupture, 
although,  on  the  other  hand,  another  physician,  who  made  a  physical  exami- 
nation of  applicant  for  a  lodge  shortly  before  the  alleged  accident,  testifies 
that  applicant  had  no  hernia  at  that  time,  and  applicant  testifies  that  he  re- 
ceived the  hernia  at  the  time  of  lifting  a  large  rock  in  the  course  of  his  em- 
ployment, the  evidence  is  insufficient  to  establish  such  lifting  as  the  proxi- 
mate cause  of  the  hernia.  The  medical  advice  of  the  Commission  is  that  the 
evidence  supplied  by  an  operation  is  in  all  such  cases  the  best  evidence,  and 
to  be  preferred  to  that  of  any  physical  examination  separate  from  the  opera- 
tion. Puljevich  V.  Lime  Rock  Sugar  Co.,  1  Cal.  I.  A.  C.  Dec.  165.  In  prac- 
tically all  cases  where  it  is  alleged  that  hernia  was  produced  by  an  accident, 
the  California  Commission  will  not  find  that  the  hernia  was  caused  by  the 
accident,  unless  it  is  attended  by  a  sufficient  degree  of  shock  and  pain  to 
wholly  incapacitate  the  injured  person  from  going  on  with  his  work  that  he 
was  doing  prior  to  the  accident.  All  such  hernias,  not  attended  by  sufficient 
symptoms,  are  to  be  regarded  as  occasioned,  rather  than  caused,  by  the  acci- 
dent. Ash  V.  Barker,  2  Cal.  I.  A.  C.  Dec.  577.  Where  the  evidence  shows  that 
a  hernial  sac  had  developed  long  before  the  accident  and  had  been  filled  ^vith 
fat,  and  that  it  remained  only  for  an  extraordinary  strain  of  lifting  to  push 
the  gut  into  the  sac  and  create  a  hernia,  such  evidence  is  insufficient  to 
establish  an  industrial  accident  as  the  cause  of  a  hernia.     Tlie  accident  was 


501  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUB  §    129 

the  actual  cause.^^  Unless  an  accident  or  strain  alleged  to  have 
caused  a  hernia  was  particularly  violent,  or  was  followed  immedi- 

held  to  be  the  occasion,  and  not  the  cause,  of  the  hernia.  Jost  v.  General 
Electric  Co.,  1  Cal.  I.  A.  C.  Dec.  527.  Where  the  employe  continued  to  work 
within  a  few  minutes  after  a  strain  sustained  in  lifting  a  heavy  box,  and  for 
two  days  thereafter,  suffering  practically  no  pain,  the  hernia  then  discovered 
is  not  proved  to  be  the  proximate  result  of  the  accident.  Roesch  v.  Reo  Pa- 
cific Co..  2  Cal.  I.  A.  C.  Dec.  486.  Where  at  the  time  of  the  accident  there  is 
a  sufficient  degree  of  pain  and  shock  to  necessitate  the  employe's  stopping 
work  immediately,  this  is  regarded  as  presumptive  evidence  of  the  existence 
of  traumatic  hernia,  which  evidence  will  be  strengthened  if  an  examination 
of  the  exterior  shows  extravasation  of  blood  and  tenderness  on  manipulation. 
The  proof  will  be  regarded  as  conclusive  if,  upon  operation,  lacerations  are 
found  in  the  inguinal  canal.  Hartford  Accident  &  Indemnity  Co.  v.  Bono,  2 
Cal.  I.  A.  C.  Dec.  668.  It  will  be  presumed  that  in  all  cases  of  hernia  there 
is  a  congenital  weakness  present,  or  else  such  hernia  would  not  result  in 
the  absence  of  trauma  definitely  tearing  the  bowel  or  abdomen  in  some  direct 
manner.  Nevertheless,  where  the  onset  of  the  hernia  is  itself  accompanied 
by  sufficient  pain  and  suffering  to  immediately  cause  the  applicant  to  cease 
work,  an  award  for  compensation  is  often  made,  unless  the  findings  at  the 
operation  are  against  the  injured  employg.  Kavas  v.  Northern  Electric  R. 
R.  Co.,  2  Cal.  I.  A.  C.  Dec.  196.  Where  there  is  conflicting  testimony  as  to 
whether  a  hernia  sustained  by  an  employ^  was  in  fact  an  old  condition  or 
recently  caused  by  accident,  and  the  testimony  of  the  applicant  shows  suffi- 
cient pain  and  disability  at  the  time  of  the  accident  to  ordinarily  establish 
an  accidental  hernia,  but  the  physician  operating  for  its  cure  testifies  that 
the  operative  findings  showed  the  hernia  to  be  an  old  one,  preference  will  be 
given  to  the  testimony  of  the  operating  physician,  and  no  compensation  will 
be  allowed.  The  policy  of  the  Commission  in  nearly  all  cases  is  to  accept  as 
conclusive  the  findings  of  the  operating  surgeon,  if  definite.  Id.  Where  the 
evidence  shows  that  deceased  had  done  some  heavy  lifting  on  the  morning 
he  was  taken  sick,  that  he  was  taken  violently  ill  with  strangulated  hernia  on 
the  afternoon  of  the  same  day,  that  he  had  not  complained  of  hernia  or  other 
trouble  as  long  as  applicant  had  known  him,  several  years,  and  the  medi- 
cal testimony  is  that  the  hernia  was  of  very  recent  and  accidental  origin,  and 
it  was  entirely  possible  for  it  to  have  been  caused  by  lifting  on  the  morning 
of  the  day  alleged,  such  evidence  is  sufficient  to  warrant  a  finding  that  the 
hernia  was  caused  by  accidental  injury  sustained  in  the  course  of  the  em- 
ployment of  deceased,  even  though  a  strangulation  does  not  usually  follow 
closely  upon  the  occurrence  of  a  hernia.  Andreini  v.  Cudahy  Packing  Co.,  1 
Cal.  I.  A.  C.  Dec.  157. 

9  &  Andreini  v.  Cudahy  Packing  Co.,  supra. 

As  said  by  Commissioner  Chandler:    "While  there  is  a  consensus  of  medi- 


§  129  workmen's  compensation  502 

ately  by  severe  pain,  it  cannot  be  said  to  be  a  probable  cause,  and 
the  hernia  must  be  held  due  to  predisposition.^  Evidence  showing 
that  the  workman  had  a  strong  predisposition  to  hernia,  and  did 
not  suffer  any  severe  pain  at  the  time  of  the  accident,  such  as  dis- 
abled him,  does  not  establish  the  accident  as  the  cause  as  distin- 
guished from  the  occasion  of  the  hernia.  As  said  by  the  California 
Commission,  it  would  be  unjust  to  charge  the  industry  with  the 
cost  of  an  operation  to  remedy  a  physical  defect  which  was  proba- 
bly at  least  nine-tenths  constitutional,  and  which  probably  would 
have  manifested  itself  sooner  or  later  upon  very  much  slighter 
provocation.^  But  where  the  workman  is  found  after  an  elevator 
accident  to  be  suffering  from  inguinal  hernia,  and  it  also  appears 
that  from  birth  he  had  an  undescended  testicle  which  readily  slipped 
back  and  forth  through  the  hernial  ring,  greatly  predisposing  him 
to  inguinal  hernia,  such  predisposition  will  not  bar  him  from  com- 
pensation for  the  hernia  if  the  evidence  is  sufficient  to  establish  the 
accident  as  the  immediate  cause  thereof.^  Where  an  employe  is 
supposed  to  have  sustained  a  hernia  while  doing  heavy  lifting,  and 
the  medical  testimony  taken  following  an  operation  for  a  cure 
shows  that  no  hernia  in  fact  existed,  but  that  a  congenital  condition 
was  present  which  had  been  aggravated  by  the  accident,  though  not 
caused  by  it,  that  inability  to  labor  following  the  accident  did  not 
last  more  than  fourteen  days,  and  that  the  operation  was  not  per- 
formed to  remedy  a  present  condition  of  disability,  but  solel}^  to 
repair  permanent  condition  supposed  to  be  due  to  the  accident,  the 
employe  is  not  entitled  to  compensation.* 

cal  opinion  that  practically  all  inguinal  hernia  is  either  congenital  or  of  slow 
development,  there  is  also  a  general  agreement  among  such  authorities  that 
the  occasion  or  exciting  cause  of  such  hernia  is  frequently  a  strain  or  blow." 
Massa  V.  Crowe,  1  Conn.  Comp.  Dec.  86. 

1  Kozlowski  V.  Illinois  Steel  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  19. 

2  Toney  v.  Williams,  1  Cal.  I.  A.  C.  Dec.  348. 

3  Steinat  v.  German  General  Benevolent  Society,  1  Cal.  I.  A.  C.  Dec.  280. 
■4  Kennedy  v.  Utah  Construction  Co.,  2  Cal.  I.  A.  C.  Dec.  60. 


503  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUB  §    130 

Hernia  as  the  result  of  accident  appeared  as  a  problem  in  Oregon, 
as  in  other  states.  The  Oregon  Commission  early  took  the  position 
that  a  claimant  must  satisfy  the  Commission  that  hernia  resulted 
or  developed  through  accident,  and  also  furnish  affidavits  to  the 
effect  that  hernia  had  not  existed  prior  to  the  accident.^ 

In  response  to  medical  criticism  of  the  theory  of  rupture  by  strain 
or  exertion,  the  Washington  Industrial  Insurance  Commission 
adopted  rules  requiring  proof  in  cases  of  claims  predicated  on  her- 
nia:  (1)  That  its  origin  was  recent;  (2)  that  it  was  accompanied 
by  pain ;  (3)  that  it  was  immediately  preceded  by  accidental  strain 
in  hazardous  employment;  and  (4)  that  it  did  not  previously  ex- 
ist. Similar  rules  have  been  adopted  elsewhere.  Notwithstanding 
the  criticism  calling  forth  these  rules,  they  impliedly  admit  possi- 
bility and  probability  of  rupture  from  a  strain,  when  the  strain 
and  the  rupture  are  in  close  relation. 

§  130.     Insanity 

Where  an  employe  becomes  insane  as  the  result  of  an  injury,^  or 
following  great  excitement  and  mental  shock  incident  to  the  peril 
of  attempting  the  rescue  of  fellow  workmen,  in  the  course  of  his 
employment,  and  such  excitement  is  shown  to  be  an  effective  cause 
of  the  mental  breakdown,  and  no  intervening  cause  for  insanity  or 
insane  condition  or  predisposition  thereto  prior  to  the  accident  is 
shown,    the    accident    is    the    proximate    cause    of    the    insanity.'^ 

5  First  Annual  Rep.,  Ore.  Indus.  Ace.  Com.  June  20,  1915,  p.  IS. 

6  An  employe  received  an  injury  to  his  hand  by  striking  a  rusty  pipe,  and 
blood  poison  set  in,  and  thereafter  he  was  taken  to  a  hospital  for  treatment. 
The  testimony  of  a  physician  showed  that  as  a  result  of  blood  poison  his  mind 
became  unbalanced,  and  that,  during  the  night,  he  ran  out  of  the  hospital 
and  disappeared,  and  that  on  the  following  morning  his  dead  body  was  found 
on  the  railroad  track.  The  Board  held  that  there  was  a  sufficient  connection 
between  the  injury,  infection  of  the  hand,  and  subsequent  death  on  the  rail- 
road track,  to  establish  that  the  death  of  the  man  was  the  direct  result  of 
the  accident  sustained  by  him  during  the  employment.  CMesa  v.  United 
States  Crushed  Stone  Co.,  Bulletin  No.  1,  111.,  p.  82. 

7  Reich  V.  City  of  Imperial,  1  Cal.  I.  A.  C.  Dec.  337. 


§131  workmen's  compensation  504 

Where,  however,  immediately  following  an  accidental  injury,  which 
in  its  nature  would  not  have  caused  a  disability  of  more  than  three 
weeks,  the  employe  develops  insanity,  and  the  medical  evidence 
shows  that  he  was  in  a  positive  syphilitic  condition,  the  proximate 
cause  of  the  insanity,  the  accident  is  not  the  proximate  cause  of 
the  continuing  disability.^ 

§  131.     Resulting  incapacity  or  death 

Compensation  is  payable  only  in  case  of  death  or  incapacity  for 
work,  total  or  partial,  as  a  result  of  the  injury,^  as  hereinbefore 
noted  ^°  without  the  intervention  of  an  independent  cause  the  sep- 
arate consequences  of  which  admit  of  definite  ascertainment.^^ 
That  the  result  was  improbable  or  unexpected  will  not  prevent  re- 
covery.^- It  is  sometimes  difficult  to  determine  at  what  point  in 
the  chain  of  causation  causes  cease  to  be  proximate  and  become 
remote,  or  cease  to  be  remote  and  become  proximate.  The  deter- 
mination of  the  proximate  or  remote  nature  of  any  incident  in  the 
chain  of  causation  must  be  determined  from  the  facts  of  each  par- 

8  Hansen  v.  Patterson  Eanch  Co.,  2  Cal.  I.  A.  C.  Doc.  769. 

9  Where  a  workman  who  burnt  his  arm  was  given  light  work,  and  five 
years  later  applied  for  arbitration,  and  the  medical  assessor  found  general 
physical  weakness,  which,  however,  he  found  was  not  due  to  the  accident,  the 
incapacity  did  not  result  from  the  injury.  Huggins  v.  Guest,  Keen  &  Nettle- 
folds,  Ltd.  (1913)  6  B.  W.  C.  C.  SO,  C.  A.  Where  a  miner  63  years  of  age  was 
injured,  and  on  account  of  his  age  and  constitution  his  enforced  idleness 
caused  him  to  become  so  obese  that  he  was  only  fit  for  some  sedentary  occu- 
pation, Ihe  incapacity  resulted  from  the  accident.  Clark  v.  Taylor  &  Co. 
(1914)  7  B.  W.  C.  C.  S56,  Ct.  of  Sess.  S71,  H.  L. 

10  See  §  127,  ante,  and  footnote  85  thereunder. 

11  Ruth  V.  Witherspoon-Englar  Co.,  98  Kan.  179,  157  Pac.  403.  Where  a 
teamster,  through  loss  of  memory  due  to  a  prior  accident,  wandered  away 
from  his  wagon  and  fell  into  a  swamp,  and  died  from  pneumonia  resulting 
from  the  exposure,  his  death  did  not  arise  out  of  his  employment.  Milliken 
V.  A.  Towle  &  Co.,  216  Mass.  293,  103  N.  E.  898,  L.  R.  A.  1916A,  337. 

12  Fleet  V.  Johnson  &  Sons  (1913)  6  B.  W.  C.  C.  633. 


505  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    131 

ticular  case.  No  general  rule  can  be  laid  down.^^  It  is  generally 
a  mixed  question  of  law  and  fact.  Where  death  ensues,  it  is  not 
material  whether  that  was  the  reasonable  and  likely  consequence; 
the  only  question  being  whether  in  fact  death  resulted  from  the  in- 
jury. When  that  is  established  as  the  cause,  then  the  right  to  com- 
pensation is  made  out.  If  the  connection  between  the  injury  as  the 
cause  and  the  death  as  the  effect  is  proven,  then  the  dependents  are 
entitled  to  recover,  even  though  such  a  result  before  that  time  may 
never  have  been  heard  of  and  might  have  seemed  impossible.  The 
material  inquiry  relates  solely  to  the  chain  of  causation  between 
the  injury  and  the  death.^*     The  mere  fact  that  there  have  inter- 

13  Hughes  V.  Degen  Belting  Co.,  1  Cal.  I.  A.  C.  Dec.  203.  Whether  a  work- 
man's death  resulted  from  an  accident  arising  out  of  his  employment  is  a 
mixed  question  of  law  and  fact.  Schraoll  v.  Weisbrod  &  Hess  Brewing  Co. 
(N.  J.  Sup.)  97  Atl.  723. 

14  (St.  1911,  c.  751,  pt.  2,  §  6)  In  re  Sponatski,  220  Mass.  526,  108  N.  K.  463, 
L.  R.  A.  1916A,  333 ;  Dunham  v.  Clare,  [1902]  2  K.  B.  292 ;  Ystradowen  Col- 
liery Co.,  Ltd.,  V.  Griffiths,  [1909]  2  K.  B.  533. 

"The  question  whether  death  resulted  from  the  injury  resolves  itself  into 
an  inquiry  into  the  chain  of  causation.  If  the  chain  of  causation  is  broken, 
so  that  the  old  cause  goes  out  and  a  new  one  is  substituted  for  it— that  is, 
a  new  act  which  gives  a  fresh  origin  to  the  after  consequences — then  death 
is  not  the  result  of  the  original  accident.  If  no  new  act  intervenes,  death  has 
in  fact  resulted  from  the  injury."  Peck  v.  San  Francisco-Oakland  Terminal 
Eys.,  1  Cal.  I.  A.  C.  Dec.  462,  approving  Dunham  v.  Clare,  supra.  That  which, 
following  in  a  natural  and  continuous  sequence,  unbroken  by  any  new  cause, 
produces  an  event,  and  without  which  the  event  would  not  have  occurred, 
is  the  proximate  cause  of  such  event.  Where  the  event  is  certain  without  the 
occurrence  of  the  accidental  injury,  such  injury  is  not  a  proximate  cause  of 
the  event  (death),  even  though  it  accelerated  it.  Waldman  v.  Hermann,  1 
Cal.  I.  A.  C.  Dec.  82.  Though  the  efficient  cause — the  one  setting  in  motion 
the  various  physical  factors  v»'hose  unbroken  sequence  of  development  results 
in  injury  or  death — is  a  trivial  event  in  itself,  nevertheless,  where  there  is 
evidence  to  support  its  probability,  and  none  to  establish  the  contrary,  the 
accident  is  the  proximate  cause  of  the  injury  and  death.  Johnson  v.  South- 
ern Cal.  Box  Factory,  1  Cal.  I.  A.  C.  Dec.  577. 

Where  a  patient  was  recovering  normally  from  an  amputation  of  the  leg 
necessitated  by  an  accidental  crushing,  followed  by  a  septic  condition,  which 
healed,  and  24  days  after  the  operation  he  suddenly  died,  and  it  was  found 
that  his  death  was  caused  by  an  embolism  resulting  from  the  septic  condition. 


§  131  workmen's  compensation  506 

vened  between  the  wrongful  cause  and  the  injurious  consequences 
acts  produced  by  the  volition  of  animals  or  of  human  beings  does 
not  necessarily  make  the  result  so  remote  as  to  preclude  recovery. 
The  test  is  to  be  found,  not  in  the  number  of  intervening  events  or 
agents,  but  in  their  character,  and  in  the  natural  and  probable  con- 

which  in  turn  was  the  result  of  the  accident,  the  death  resulted  from  the  ac- 
cident. Akins  V.  Pac.  Light  &  Power  Corp.,  2  Cal.  I.  A.  C.  Dec.  985.  Where 
an  employe  was  suffering  from  old  age,  paralysis  agitans,  and  chronic  myo- 
carditis, and  the  testimony  of  attending  physicians  was  that  these  diseases 
were  certain  to  cause  death  before  long,  but  that,  barring  accidents,  the  em- 
ployg  might  have  lived  for  many  months,  or  even  for  some  years,  and  such 
employe  was  injured  by  accident  while  working  at  his  employment,  receiving 
a  fracture  of  the  femur,  and  died  six  weeks  later  from  the  combined  result 
of  all  the  causes,  mentioned,  such  accidental  injury  was  held  to  have  been 
a  proximate  cause  of  the  death,  and  compensable.  Hughes  v.  Degen  Belting 
Co.,  1  Cal.  I.  A.  C.  Dec.  203. 

A  blacksmith  was  kicked  on  the  right  hand  by  horse  while  he  was  attempt- 
ing to  fit  a  shoe  on  said  horse,  and  was  incapacitated  for  work  for  a  period 
of  about  a  month,  after  which  he  resumed  his  regular  employment.  Shortly 
afterwards  he  became  ill,  and  died  in  the  hospital  a  day  later  from  a  per- 
forated ulcer  of  the  stomach.  The  medical  evidence  showed  that  there  was  no 
causal  relation  between  the  ulcer  and  the  injury.  The  Commission  held 
that  the  death  of  the  employ^  did  not  result  from  a  personal  injury  arising 
out  of  and  in  the  course  of  his  employment.  Twoomey  v.  Royal  Indemnity 
Co.,  2  Mass.  Wk.  Comp.  Cases,  540  (decision  of  Com.  of  Arb.). 

A  workman,  suffering  with  hernia  as  the  result  of  an  accident,  was  taken 
to  the  hospital  and  operated  on;  but,  owing  to  his  poor  physical  condition, 
only  an  old  hernia  was  operated  on.  A  later  operation  was  performed,  and 
in  recovering  from  the  latter  he  contracted  pneumonia  and  died.  His  death 
resulted  from  the  injuries  received  in  his  employment.  Moore  v.  William 
Harkin  &  Sons,  4  N.  Y.  St.  Dep.  Eep.  383. 

Where  the  workman  while  in  the  hospital  for  treatment  for  his  injury,  con- 
tracted tonsilitis,  which  was  epidemic  in  the  ward,  and  which  was  the  imme- 
diate cause  of  his  death,  his  paralytic  condition  making  treatment  for  the 
tonsilitis  difficult  and  contributing  to  the  seriousness  of  the  disease,  it  was 
held  that  his  death  was  proximately  caused  by  the  injury.  Keehan  v.  City 
of  Milwaukee,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  24. 

Where  a  carman  was  taken  to  a  hospital  following  a  fall  from  his 
van,  and  died  there  three  weeks  later,  but  there  was  no  medical  evidence  as 
to  the  cause  of  the  death,  the  doctor  who  attended  him  being  abroad  at  the 
time  of  the  trial,  it  was  held  there  was  no  evidence  that  death  resulted  from 
the  accident.    Honor  v.  Painter  (1911)  4  B.  W.  C.  C.  188,  C.  A. 


507  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUB  §    131 

nectioii  between  the  wrong  done  and  the  injurious  consequence. 
So  long  as  it  affirmatively  appears  that  the  mischief  is  attributable 
to  the  negligence  as  a  result  which  might  reasonably  have  been 
foreseen  as  probable,  the  legal  liability  continues/^  For  example, 
where  the  employe  had  sustained  a  mortal  injury,  one  from  which 
death  must  sooner  or  later  occur,  a  fracture  of  the  spine  with  a 
severance  of  the  spinal  cord,  which  caused  not  only  a  complete 
paralysis  of  the  lower  limbs,  but  a  loss  of  power  and  sensation  be- 
low the  seat  of  injury,  and  he  was  obliged  to  lie  in  bed  in  one  posi- 
tion, in  consequence  of  which  an  extensive  bedsore  developed, 
bringing  about  blood  poisoning,  the  immediate  cause  of  his  death, 
the  death  resulted  from  the  injury.^®  On  the  other  hand,  to  use 
the  language  of  an  English  case,  the  question  in  case  of  death  is 
not  whether  the  accident  was  responsible  for  the  death,  but  whether 
death  resulted  from  the  accident.^^  Suppose  a  workman  has  met 
with  an  accident  and  has  been  put  on  a  stretcher  to  be  removed  to 
the  hospital,  and  on  the  way  to  the  hospital  is  killed  by  lightning, 
or  is  shot  by  a  lunatic,  or  is  run  over  by  a  vehicle.  In  all  these 
cases  it  could  truly  be  said  that  but  for  the  accident  the  man  would 
not  have  died  at  the  time  at  which  and  in  the  way  in  which  he 
did  die,  because,  if  the  accident  had  not  happened,  the  man  would 
have  been  at  work,  and  not  on  the  stretcher.  But,  nevertheless  in 
all  these  cases  a  new  cause  was  introduced  and  it  would  be  out  of 
the  question  to  say  that  death  resulted  from  the  accident. ^^  In  a 
case  decided  by  the  Court  of  Appeals  under  the  English  Workmen's 

15  In  re  Burns,  218  Mass.  8,  105  N.  E.  601,  Ann.  Cas.  1916A,  787;  McDonald 
V.  Snelling,  14  Allen  (Mass.)  290,  92  Am.  Dec.  768.  Where  the  tip  of  a  work- 
mans  crushed  finger  was  amputated,  but  adhesions  remained,  and  the  em- 
ployers applied  for  review  on  the  ground  that  the  work  would  have  broken 
down  the  adhesions,  and  just  three  days  before  the  hearing  the  man  sub- 
mitted to  a  further  amputation,  there  was  incapacity  resulting  from  the  in- 
jury.   Burgess  &  Co.,  Ltd.,  v.  Jewell  (1911)  4  B.  W.  C.  C.  145,  C.  A. 

16  In  re  Burns,  supra. 

17  Dunnigan  v.  Cavan  &  Lind    (1911)   S.  C.  579,  Ct.  of  Sess. 

18  Id. 


§  132  workmen's  compensation  50S 

Compensation  Act,  wherein  it  appeared  that  the  injured  workman^ 
though  he  had  recovered  from  the  immediate  effects  of  the  injury, 
had  never  recovered  his  normal  health,  but  continued  to  be  v^reak 
and  debilitated,  that  thirteen  months  after  the  accident  he  died 
from  bronchitis  following  an  attack  of  influenza,  and  that  it  was 
by  reason  of  the  weakened  condition  to  which  the  accident  had  re- 
duced him  that  the  bronchitis  proved  fatal,  the  court  held  that  the 
death  resulted  from  the  injury.^^ 

§  132.     Suicide 

Where  there  follows  as  the  direct  result  of  a  physical  injury  an 
insanity  such  as  to  cause  the  workman  to  take  his  own  life  through 
an  unaccountable  impulse  or  in  a  delirium  of  frenzy  without  con- 
scious volition  to  produce  death,  having  knowledge  of  the  physical 
consequences  of  the  act,  there  is  a  direct  and  unbroken  connection 
between  the  injury  and  the  death.  But  where  the  resulting  insan- 
ity is  such  as  to  cause  suicide  through  a  voluntary  willful  choice 
determined  by  a  moderately  intelligent  mental  power  which  knows 
the  purpose  and  the  physical  effect  of  the  suicidal  act,  even  though 
choice  is  dominated  by  a  disordered  mind,  then  there  is  a  new  and 
independent  agency,  which  breaks  the  chain  of  causation  arising 
from  the  injury.^"    Where  there  is  no  evidence  tending  to  suggest 

19  Thoburn  v.  Bedlington  Coal  Co.,  5  Butterworth's  Compensation  Cases, 
128.  The  same  principle  was  unheld  in  Dunham  v.  Clare,  [1902J  2  K.  B.  292, 
in  which  the  death  for  which  compensation  was  allowed  was  brought  on  by 
a  supervening  attack  of  erysipelas,  but  was  found  to  have  been  the  result  of 
the  preceding  injury.  See,  also,  Ystradowen  Colliery  v.  Griffiths,  [1909]  2 
K.  B.  533. 

20  (St.  1911,  c.  751)  In  re  Sponatski,  220  Mass.  526,  lOS  N.  B.  466,  L.  R.  A. 
1916A,  333. 

Before  an  employe  had  completely  recovered  from  temporary  total  disabil- 
ity caused  by  an  accident  in  the  course  of  his  employment,  he  suddenly  be- 
came insane  and  was  committed  to  an  asylum.  The  wound  received  had 
healed  at  the  time  of  his  becoming  insane,  and  there  was  nothing  to  indicate 
that  the  insanity  resulted  from  the  wound.  The  Commission  held  that  the 
disability  resulting  on  account  of  the  insanity  did  not  result  from  an  injury 


509  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    133 

either  suicide  or  homicide,  the  presumption  is  that  the  deceased  did 
not  commit  suicide. ^^  It  has  been  held  that,  where  a  workman  who 
had  been  injured  in  the  head  was  eight  months  later  found  drown- 
ed in  a  canal,  the  fact  that  he  had  become  depressed  and  irritable 
as  a  result  of  his  injury  was  not  evidence  that  he  had  committed 
suicide;  ^^  also  that,  where  a  workman  became  depressed,  worried, 
and  in  pain  because  of  an  accident  to  his  eye,  and  committed  sui- 
cide, there  being  no  evidence  of  insanity  except  the  suicide  itself, 
there  was  no  evidence  to  support  the  finding  of  the  trial  judge  that 
the  man  killed  himself  during  a  fit  of  insanity  caused  by  the  acci- 
dent.23 

§  133.     Aggravation  of  existing  disease 

Where,  but  for  the  accident,  the  person  would  not  have  died  at 
the  time  at  which,  and  in  the  way  in  which,  he  did  die,  the  acci- 
dent must  be  held  to  have  been  the  cause  of  his  death,^*  though 
it  merely  accelerated  a  pre-existing  disease.-^     For  example,  the 

sustained  in  the  course  of  employment.  In  re  Charles  Ebuer,  vol.  1,  No.  7, 
Bui.  Ohio  Indus.  Com,,  p.  47. 

Where  a  sheriff-substitute  dismissed  as  irrelevant  the  claim  of  a  widow 
of  a  workman  who,  after  losing  the  sight  of  one  eye,  had  the  other  also 
injured,  becoming  almost  blind,  and,  being  alleged  to  have  become  insane, 
committed  suicide,  the  court  held,  on  appeal,  that  there  was  evidence  which 
entitled  the  claim  to  be  considered.     Maloue  v.  Cayzer,  Irvine  &  Co.   (.1^09)  1 

B.  W.  C.  C.    27,  Ct.  of  Sess. 

21  W.  R.  Rideout  Co.  v.  Pillsbury  (Cal.)  159  Pac.  435. 

2  2  Southall  V.  Cheshire  County  News  Co.,  Ltd.    (1912)  5  B.  W.  C.  C.  251, 

C.  A. 

2  3  Grime  v.  Fletcher  (1915)  8  B.  W.  C.  C.  69,  C.  A. 

2  4  Golder  v.  Caledonian  Ry.  Co.  (1903)  5  F.  123,  Ct.  of  Sess. 

25  Whatever  predisposing  physical  condition  may  exist,  if  the  employment 
is  the  immediate  occasion  of  the  injury,  it  arises  out  of  the  employment  be- 
cause it  develops  within  it.  When  the  exertion  of  the  employment  acts 
upon  the  weakened  condition  of  body  of  the  employd,  or  upon  an  employe 
predisposed  to  suffer  injury  in  such  a  way  that  a  personal  injury  results, 
the  injury  must  be  said  to  arise  out  of  the  employment.    An  employ^  may  be 


§  133  workmen's  compensation  510 

fact  that  a  miner  permanently  incapacitated  by  an  accident  had 
heart  disease,  which  would  have  incapacitated  him  even  if  there 

suffering  from  heart  disease,  aneurism,  hernia,  or  other  ailment,  and  the 
exertion  of  the  employment  may  develop  his  condition  in  such  a  manner  that 
it  becomes  a  personal  injury.  The  employe  is  then  entitled  to  recover  for  all 
the  consequences  attributable  to  the  injury.  Hartz  v.  Hartford  Faience  Co., 
go  Conn.  539,  97  Atl.  1020.  In  Lynch  v.  Great  Atlantic  &  Pacific  Tea  Co.,  1 
Conn.  Comp.  Dec.  163,  where  claimant,  a  boy  of  17,  had  sustained  injuries 
vi'hile  assisting  in  the  delivery  of  a  barrel  of  flour  which  aggravated  a  disease 
of  the  spine  and  caused  a  breakdown,  resulting  in  paralysis  of  the  lower  ex- 
tremities of  the  spinal  cord,  he  was  awarded  compensation  for  the  period  of 
his  injury  in  advance  of  what  the  natural  progress  of  the  disease  would  have 
caused.  In  Griffin  v.  A.  Roberson  &  Sons,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10, 
p.  18,  where  the  injury  brought  into  activity  a  partially  latent  case  of 
Bright's  disease  and  hastened  it  to  its  fatal  close,  compensation  was  awarded. 
In  Roman  v.  American  Steel  &  Wire  Co.,  1  Conn.  Comp.  Dec.  566,  where  the 
claimant's  traumatic  neuritis,  due  to  the  injury,  was  aggravated  by  a  mal- 
formation of  the  septum  and  his  nervous  condition,  it  was  held  that  these  dis- 
abilities did  not  bar  or  lessen  compensation. 

While  compensation  will  in  some  cases  be  awarded  where  constitutional 
maladies  are  aggravated  by  an  accident  arising  out  of  the  employment,  the 
Commission  will  be  conservative  in  concluding  that  the  injury  was  the  proxi- 
mate cause  of  such  disability.    Ash  v.  Barker,  2  Cal.  I.  A.  C.  Dec.  139. 

Where  a  cook  on  a  lighter  overexerted  himself  while  removing  his  effects 
from  the  sinking  ship,  and  died  soon  after  of  heart  disease  hastened  by  such 
overexertion,  the  accident  was  the  cause  of  his  death,  since  any  act  which 
would  have  been  reasonable  for  any  one  to  do  when  leaving  a  sinking  ship, 
which  was  his  temporary  home,  was  within  the  scope  of  his  employment.  In 
re  Brightman,  220  Mass.  17,  107  N.  E.  527,  L.  R.  A.  1916A,  321. 

Even  though  a  diseased  condition  of  the  workman's  veins  existed  before 
the  accident,  compensation  may  be  awarded  if  the  injury  hastens  to  a  fatal 
close  the  disease  with  which  he  was  afliicted.  La  Fluer  v.  Wood,  The  Bulle- 
tin, N.  Y.,  vol.  1,  No.  7,  p.  7.  Where  there  was  medical  evidence  that  death 
was  due  to  typhoid  fever,  accelerated  and  hastened  to  a  fatal  close  by  the 
injury,  compensation  was  awarded  on  the  groimd  that  the  disease  was  one 
such  as  "may  naturally  and  unavoidably  result"  from  the  injury.  Banks  v. 
Adams  Express  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  7,  p.  9.  Where  though  a 
workman  had  a  cancer  prior  to  the  accident,  it  was  undeveloped,  and  he  had 
been  in  good  health  and  had  passed  an  insurance  examination  shortly  be- 
fore, and  the  medical  testimony  was  that  such  a  cancer  might  have  contin- 
ued for  a  long  time  without  causing  illness,  the  workman  having  died  very 
shortly  after  the  accident  from  hemorrhage  due  to  the  cancer,  it  was  held 
the  accident  increased  the  virulence  of  the  cancer  and  caused  death  to  occur 


511  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION   DUE  §    133 

had  been  no  accident,  did  not  establish  that  the  incapacity  did  not 
result  from  the  injury,^®  Also,  where  an  injury  to  a  miner's  right 
eye  rendered  that  member  practically  useless,  but  he  could  have 
resumed  his  former  work  but  for  the  fact  that  the  other  eye  was 
afifected  by  nystagmus,  which  was  neither  caused  nor  aggravated 
by  the  accident,  the  incapacity  was  one  which  resulted  from  the  in- 
jury.^^  And,  where  an  industrial  accident  causes  a  tubercular  con- 
sooner  than  it  would  otherwise  have  done,  and  therefore  that  the  case  was 
compensable.  Blatt  v.  Schoneberger  &  Noble,  The  Bulletin,  N.  Y.,  vol.  1, 
No.  6,  p.  10. 

Where  a  workman,  in  a  weakened  condition  on  account  of  a  previous  oper- 
ation, was  struck  in  the  side  by  a  crane  hook,  the  blow  not  being  sufficient 
in  itself  to  cause  the  empyema  which  followed,  but  exasperating  or  hasten- 
ing the  disease,  the  blow  was  the  proximate  cause  of  the  injury.  Bakiewicz 
V.  National  Brake  &  Electric  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  11. 

Death  resulted  from  the  accident  where  a  workman  suffering  from  nephritis 
was  injured,  and  his  death,  which  occurred  some  time  later,  was  accelerated 
by  the  shock  of  the  accident  (Colder  v.  Caledonian  Ry.  Co.  [1903]  5  F.  123, 
Ct.  of  Sess.),  and  where,  although  a  workman's  brain,  liver,  and  stomach  were 
diseased  by  excessive  use  of  alcohol,  and  an  accident  which  he  suffered 
caused  his  death  to  occur  sooner  than  it  would  probably  otherwise  have  done 
(Connell  &  Co.  v.  Barr  [1904]  116  L.  T.  127,  Ct.  of  Sess.).  Incapacity  likewise 
resulted  from  the  injury  where  a  workman,  receiving  part  compensation  for 
an  injury,  was  incapacitated  for  work  by  the  supervention  of  a  cardiac  af- 
fection not  shown  to  have  been  connected  with  the  injury  (Quinn  v.  Mc- 
Callum  [1908]  46  S.  L.  R.  141,  Ct.  of  Sess.),  and  where  a  workman  had  his 
hand  jarred,  and,  largely  because  of  his  gouty  constitution,  it  was  injured 
(Lloyd  V.  Sugg  &  Co.,  Ltd.  [1900]  2  W.  C.  O.  5,  C.  A.). 

2  6  Harwood  v.  Wyken  Colliery  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  225,  C.  A. 

2  7  Lee  V.  Baird  &  Co.,  Ltd.   (1909)  1  B.  W.  C.  C.  34,  Ct.  of  Sess. 

In  Hatch  v.  I.  Newman  &  Sons,  1  Conn.  Comp.  Dec.  65,  where  it  was  shown 
that  an  accidental  fall  aroused  an  inactive  and  latent  condition  of  tubercu- 
losis, so  that  the  claimant  was  totally  incapacitated  thereby,  but  that  the 
tubercular  condition  would  have  become  active  in  about  a  year  of  itself,  had 
not  the  accident  occurred,  compensation  for  one  year  of  incapacity  was 
awarded. 

Where  the  workman  had  a  latent  tubercular  condition  from  childhood, 
but  had  sufficient  recuperative  vitality  to  recover  from  two  other  accidents, 
after  the  latter  of  which  he  did  not  go  back  to  work,  but  went  to  the  home 
of  his  sister,  where  he  rapidly  declined  and  finally  died  of  pulmonary  tu- 
berculosis, his  death  was  the  natural  and  unavoidable  result  of  the  injury. 


§  133  workmen's  compensation  512 

dition,  which  has  long  been  quiescent,  to  spring  into  renewed  ac- 
tivity by  reason  of  the  shock  and  shaking  up  caused  by  the  acci- 
dent, the  subsequent  illness  due  to  the  renewed  tubercular  infec- 
tion is  proximately  caused-  by  the  accident,  and  compensation  can 
be  awarded  therefor.^*  Acceleration  of  death  from  delirium  tre- 
mens, through  an  injury  bringing  on  or  aggravating  the  condition 
of  alcoholism  or  tremens,  has  been  held  to  sustain  liability  for  the 
death  as  produced  by  the  injury  both  in  court  actions  and  under 
the  Compensation  Acts.^*  On  the  other  hand,  if  there  previously 
existed  a  diseased  condition  which  would  of  itself  have  soon  re- 
sulted in  a  disability,  an  event  that  brings  on  such  disability  is  not 
a  proximate  cause,  but  a  mere  incident  thereof.^**  Where  an  em- 
Nelson  V.  Thomas  McLarnon  &  Co.,  Inc.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10, 
p.  19.  Where  the  workman  had  tuberculosis  prior  to  the  injury,  but  his 
condition  was  accelerated  by  a  blow  on  the  chest  from  a  piece  of  the  grind- 
stone, which  broke  while  he  was  using  it,  the  injury  was  held  to  be  the 
cause  of  disability.  Backman  v.  Dwight  Devine  &  Sons,  The  Bulletin,  N.  Y., 
vol.  1,  No.  10,  p.  17. 

2  8  Maurmann  v.  Chirhart  &  Nystedt,  1  Cal.  I.  A.  C.  Dec.  499.  An  employe 
was  afflicted  with  tuberculosis  prior  to  the  date  on  which  he  claimed  he  re- 
ceived a  personal  injury  by  reason  of  exposure  in  an  unoccupied  house  in 
tvhich  he  was  employed  as  a  painter,  the  temperature  on  that  day  being  32 
degrees  above  zero.  The  windows  were  open  and  some  of  the  doors  were 
down  during  the  period  of  his  employment  there.  It  was  held  that  the  tu- 
berculosis was  not  materially  accelerated  by  the  alleged  personal  injury. 
Fralin  v.  U.  S.  Casualty  Co.,  2  Mass.  TVTi.  Comp.  Cases,  758  (decision  of  Com. 
of  Arb.,  affirmed  by  Indus.  Ace.  Bd.). 

2  9  McCahill  v.  New  York  Transportation  Co.,  201  N.  Y.  221,  94  N.  E.  616, 
48  L.  R.  A.  (N.  S.)  131,  Ann.  Cas.  1912A,  961;  Carroll  v.  Knickerbocker  Ice 
Co.,  109  App.  Div.  450,  155  N.  Y.  Supp.  1;  Winters  v.  New  York  Herald 
(Sup.)  155  N.  Y.  Supp.  1149;  Sullivan  v.  Industrial  Engineering  Co.  (Sup.) 
158  N.  Y.  Supp.  970. 

Compensation  may  be  awarded  for  death  due  to  delirium  tremens,  produced 
by  injury  to  one  whose  system  is  in  such  a  condition  from  the  constant  use 
of  alcoholic  liquor  that  an  injury  is  likely  to  produce  such  result.  Minnis  v. 
Young,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10,  p.  14, 

30  Allen  V.  Southwestern  Surety  Insur,  Co.,  1  Cal.  I.  A.  C.  Dec.  67. 
Disability  may  properly  be  ascribed  to  a  pre-existing  condition  or  ailment, 
if  the  injury  is  slight  and  the  condition  or  ailment  is  known  to  have  existed 


513  CIRCUMSTANCES   UNDER   WHICH    COJirENSATION   DUE  §    134 

ploye  sustains  a  very  slight  blow  to  his  leg  not  sufficient  to  do 
more  than  bruise  and  break  the  skin  of  a  normal  person,  but  by  rea- 
son of  a  syphilitic  condition  his  bones  have  become  very  brittle, 
and  he  sustains  a  fracture  because  of  the  said  slight  blow,  the  em- 
ployer is  not  liable.^ ^  Likewise  where  the  death  of  employe  from 
heart  disease  is  certain  to  occur  within  a  comparatively  short  time, 
and  such  death  is  hastened  by  a  fall  received  in  the  course  of  his 
employment,  but  no  symptoms  of  heart  shock  appear  until  nine 
days  after  the  fall,  and  after  the  noticeable  physical  injuries  caused 
by  the  accident  are  healed,  such  accident  cannot  be  said  to  be  proxi- 
mate cause  of  the  death. ^^  To  charge  a  disability  to  a  pre-existing 
condition,  such  condition  must  be  established  to  a  reasonable  cer- 
tainty.^^ 

§  134.     Aggravation  of  injury  after  accident 

The  rule  to  be  applied  where  it  is  charged  that  the  workman  has 
aggravated  the  injury  thus  causing  his  disability  is  that  which 
governs  in  an  action  at  law  for  damages  for  personal  injuries.  The 
injured  workman  must  do  nothing  to  aggravate  his  condition  or 
prevent  his  recovery.  In  an  action  at  law,  when  the  plaintiff  has 
proved  the  liability  of  the  defendant  and  the  resulting  injury  to 
the  plaintiff,  and  defendant  claims  that  the  disability  has  been 
aggravated  and  a  cure  prevented  by  the  neglect  of  the  plaintiff', 
defendant  must  show  those  facts  as  matters  of  defense,  and  all 
doubts  relative  thereto  should  be  resolved  in  favor  of  the  plain- 
tiff.3*     As  said  by  Judge  Rosenberry:    "The  proposition  that  an 

at  the  time  of  the  injury.  Snyder  v.  Pacific  Tent  &  Awning  Co.,  3  Cal.  I. 
A.  C.  Dec.  1. 

31  Spangler  v.  Philbin,  2  Cal.  I.  A.  C.  Dec.  158. 
82  Waldman  v.  Hermann,  1  Cal.  I.  A.  C.  Dec.  S2. 
8  3  Snyder  v.  Pacific  Tent  &  Awning  Co.,  3  Cal.  T.  A.  C.  Dec.  1. 
84  Corral  v.  William  H.  Hamlyn  &  Soa  (R.  I.)  94  Atl.  877. 
In  City  of  Goshen  v.  England,  119  Ind.  368,  21  N.  E.  977,  5  L.  R.  A.  253, 
the  court  said  in  reference  to  this  question:    "It  is  here  claimed  that  the 
HoN.CoMP. — 33 


§134  workmen's  compensation  514 

applicant,  under  the  provisions  of  the  humane  law,  may  create,  con- 
tinue, or  even  increase  his  disability  by  his  willful,  unreasonable, 
and  negligent  conduct,  claim  compensation  from  his  employer  for 
his  disability  so  caused,  and  thereby  cast  the  burden  of  his  wrong- 
ful act  upon  society  in  general,  is  not  only  utterly  repugnant  to  all 
principles  of  law,  but  is  abhorrent  to  that  sense  of  justice  common 
to  all  mankind."  ^^    Where  a  workman  whose  arm  has  been  broken 

negligence  of  the  plaintiff  contributed,  not  to  tlie  cause,  but  to  the  aggrava- 
tion, of  the  injurj%  and  is  certainly  not  an  element  which  the  plaintiff 
should  be  required  to  prove  to  entitle  her  to  recover,  but  it  is  clearly  a  mat- 
ter of  defense,  and  the  burden  of  proving  it  should  rest  upon  the  defendant." 
This  principle  has  been  applied  in  cases  under  Employers'  Liability  Acts  in 
Marshall  v.  Orient  Steam  Navigation  Co.,  3  B.  W.  C.  C.  15,  and  Quinn  v. 
McCallum,  2  B.  W.  C.  C.  339. 

3  5  Lesh  V.  Illinois  Steel  Co.  (Wis.)  157  N.  W.  539;  Smrakar  v.  Pacific  Lum- 
ber Co.,  2  Cal.  I.  A.  C.  Dec.  87. 

The  Industrial  Accident  Commission  is  not  authorized  by  the  Workmen's 
Compensation  Act  to  award  compensation  to  an  employ^  who  has  sustained 
an  injury  by  accident,  arising  out  of  and  in  the  course  of  his  employment 
for  an  additional  injury  sustained  by  him  afterwards,  and  not  in  the  course 
of  his  employment,  by  an  accident  or  act  which  aggravates  the  first  injury 
and  prolongs  the  disability.  Head  v.  Head  Drilling  Co.,  2  Cal.  I.  A.  C.  Dec. 
973,  171  Cal.  728,  154  Pac.  834.  Where  the  evidence  shows  that  an  employe 
had  sustained  a  fracture  of  an  arm  and  that  before  such  fracture  was  healed 
he  again  broke  the  arm  in  the  same  place  by  an  accident  which  did  not 
occur  in  the  course  of  his  employment,  he  was  entitled  to  compensation  only 
for  the  normal  period  that  he  would  have  been  disabled  as  a  result  of  the 
first  accident.  Woodruff  v.  Peterson,  1  Cal.  I.  A.  C.  Dec.  516.  Where  an 
employe  sustained  an  inguinal  hernia  in  the  course  of  his  employment,  and 
was  operated  on  for  its  cure,  and  shortly  after  such  operation  discovered  a 
lump  or  tumor  in  his  groin,  and  a  second  operation  was  performed  upon  the 
supposition  that  the  lump  was  due  either  to  the  prior  operation  having  been 
unsuccessful  or  to  other  causes,  and  the  second  operation  showed  that  the 
lump  is  in  fact  due  to  a  varicocele,  aggravated,  but  not  caused,  by  the  hernia, 
.such  condition  having  existed  before  it,  such  varicocele  was  not  proximately 
caused  by  accident  arising  out  of  the  employment,  and  the  employe  was  enti- 
tled to  a  temporary  disability  indemnity  for  the  period  that  he  was  dis- 
abled solely  as  a  result  of  the  second  operation.  Jorgensen  v,  Healy-Tibbitts 
Constr.  Co.,  2  Cal.  I.  A.  C.  Dec.  46. 

Where  a  workman  in  the  hospital  for  an  operation  on  an  injured  knee 
contracted  scarlet  fever,  not,  however,  as  a  result  of  the  injury,  the  fever 


515  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUE  §    134 

carelessly  uses  it  too  soon,  and  the  broken  bone,  being  only  partly 
knit,  slips,  the  additional  injury  is  not  compensable. ^°  But  where 
an  employe  is  injured  while  at  work,  sustaining  a  fracture  of  the 
left  leg,  and  is  taken  to  a  hospital  for  treatment  for  his  injury,  and 
while  in  the  hospital  slips  and  falls  on  arising  from  his  bed  because 
of  clumsiness  due  to  his  disability,  breaking  the  other  leg,  the 
second  accident  may  properly  be  regarded  as  a  continuation  of  the 
first,  and  is  therefore  compensable.^'^  That  the  disability  results 
from  infection  which  sets  in  after  the  accident,  which  caused  an 
abrasion  of  the  skin,  does  not  prevent  it  from  being  proximately 
caused  by  the  injury.^®  Compensation  cannot  be  recovered  for  pro- 
longation of  disability  due  to  intoxication  or  violation  of  the  phy- 
sician's instructions. ^°     A  subsequent  illness  caused  by  overeating, 

causing  the  wound  to  suppurate  so  that  excision  of  the  joint  was  necessary, 
and  leaving  the  man  with  a  stiff  linee  and  shortened  leg,  it  was  held  that  the 
incapacity  resulted  from  the  accident.  Brown  v.  Kent  (1913)  6  B.  W.  C.  C. 
745,  C.  A. 

3  6  Pacific  Coast  Casualty  Co.  v.  Pillsbury  Industrial  Accident  Commission, 
171  Cal.  319,  153  Pac.  24. 

3  7  Block  V.  Mutual  Biscuit  Co.,  2  Cal.  I.  A.  C.  Dec.  274, 

38  Great  Western  Power  Co.  v.  Pillsbury,  171  Cal.  69,  151  Pac.  113G,  L.  R. 
A.  1916A,  281. 

39  In  Kearus  v.  New  London  Marine  Iron  Works  Co.,  1  Conn.  Comp.  Dec. 
225,  where  the  period  of  disability  due  to  infection  of  an  injured  finger  was 
unnecessarily  prolonged  by  the  failure  of  the  workman  to  follow  the  in- 
structions of  his  physician,  and  his  intoxication  during  incapacity,  the 
award  was  made  only  for  the  period  of  incapacity  which  would  ordinarily 
result  from  an  injury  of  like  nature.  In  Blackall  v.  Winchester  Repeating 
Arms  Co.,  1  Conn.  Comp.  Dec.  183,  It  was  held  that  where  an  injury  re- 
ceived by  a  fall  would  not  ordinarily  have  lasted  over  three  weeks,  but  was 
aggravated  by  the  deceased  leaving  her  bed  contrary  to  the  physician's  or- 
ders and  seeking  other  employment  before  she  was  able,  and  she  fell  a 
second  time  from  weakness  on  her  return,  which  latter  fall  aggravated  an 
existing  disease  and  resulted  in  death,  the  death  was  not  due  to  the  first  in- 
jury. Compensation  was  awarded  for  the  three  weeks  the  disability  due  to 
the  first  injury  would  normally  have  lasted. 

But  where  a  workman,  while  in  the  hospital  for  treatment  for  an  injury, 
received   considerable  quantities   of  ale   from   his   friends,   the   drinking   of 


§135  workmen's  compensation  516 

indigestion,  and  unwonted  inactivity  following  injury  cannot  be 
connected  with  such  injury  by  the  law  of  cause  and  efifect.^"  Thus, 
where  an  employe  cut  his  wrist,  which  became  infected  with  germs, 
but  healed,  and  would  have  produced  no  harmful  results  had  he 
not  engaged  in  a  boxing  contest,  and  thereby  started  the  germs  into 
activity,  causing  blood  poisoning,  the  cutting  of  his  wrist  was  not 
the  proximate  result  of  the  disability  caused  by  the  poisoning.*^ 

§  135.     Additional  injury 

Where  there  have  been  two  accidents,  the  question  whether  the 
disability  shall  be  attributed  to  the  first  or  the  second  accident  de- 
pends on  the  circumstances  of  the  particular  case.*^     Where  an 

which  aggravated  his  delirious  condition,  but  did  not  produce  it,  it  was  held 
the  aggravation  was  not  sufficient  to  have  been  a  producing  cause  of  the 
death,  and  compensation  was  awarded.  Minnis  v.  Young,  The  Bulletin,  N.  Y., 
vol.  1,  No.  10,  p.  14. 

40  Simpson  v.  Paraffine  Paint  Co.,  1  Cal.  I.  A.  C.  Dec.  76. 

41  Kill  v.  Indus.  Com.,  160  Wis.  549,  152  N.  W.  148,  L.  R.  A.  1916A,  14. 

42  Where  a  permanently  injured  workman  was  re-employed  at  light  work, 
and  suffered  a  second  accident  of  minor  nature,  the  judge,  in  deciding  wheth- 
er further  compensation  was  due,  must  decide  whether  the  workman  was 
still  incapacitated  from  the  first  accident.  Wilkinson  v.  Frodingham  Iron  & 
Steel  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  200,  C.  A. 

Where,  on  supplemental  hearing,  the  Commission  found  upon  medical  tes- 
timony that,  after  disability  arising  from  the  dislocation  of  the  semilunar 
cartilage  of  the  knee  has  ceased  and  the  joint  to  all  intents  is  in  a  condition 
of  complete  cure,  the  dislocation  may  recur,  the  second  injury  should  be  re- 
garded as  a  new  one  and  compensable  independently  of  the  former  injury. 
Giampolini-Lombardi  Co.  v.  Employers'  Liability  Assur.  Co.,  2  Cal.  I.  A.  C. 
Dec.  1010.  Where  an  employe  breaks  his  kneecap  by  accident  occurring  in 
the  course  of  the  employment,  and  11  weeks  afterwards,  after  returning  to 
work,  sustains  a  fall  and  again  fractures  the  same  kneecap,  and  the  medical 
evidence  shows  that  in  11  weeks  the  kneecap  should  have  become  firmly 
united,  and  that  the  probabilities  are  against  the  union  being  so  defective  as 
to  cause  a  reopening  of  the  fracture  upon  slight  sprain,  the  accident  will  be 
regarded  as  a  new  injury,  and  no  compensation  will  be  awarded  for  the  first 
14  days  after  the  happening  of  said  second  accident.  Ryan  v.  California 
Baking  Co.,  2  Cal.  I.  A.  C.  Dec.  190. 


517  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUE  §   1^5 

employe  previously  crippled  by  a  breaking  of  the  hip  bone  slips 
down  one  step  of  a  stairs,  and  an  operation  clearly  shows  that  the 
former  fracture  had  only  mended  by  a  fibrous  union,  now  sepa- 
rated, the  second  injury,  if  any,  was  but  a  continuation  of  the 
former  injury,  and  is  not  compensable."  But  where  an  employe 
sustains  by  accident  a  broken  leg,  causing  temporary  total  dis- 
ability, for  which  compensation  is  awarded,  and  in  the  same  ac- 
cident a  crushing  of  the  chest,  which,  after  the  healing  of  the  leg, 
develops  a  serious  illness,  he  has  suffered  a  continuous  disability 
resulting  from  the  accident,  and  is  entitled  to  compensation  there- 
for, even  though  the  illness  due  to  the  chest  injury  did  not  arise 
until  more  than  six  months  from  the  original  accident.**  It  has 
been  held  that  the  incapacity  did  not  result  from  the  first  accident, 
where  a  riveter  had  the  index  finger  of  his  hand  amputated  as  the 
result  of  an  accident,  and  his  hand  became  inflamed  eight  years 
later  while  he  was  using  a  pneumatic  hammer,  even  if  the  first 
accident  produced  a  physical  injury  which  occasioned  the  second 
injury,*'  where  a  workman  whose  knee  had  been  wrenched  three 
years  before,  and  pained  him  at  intervals  upon  arising  from  a 
kneeling  position,  found  he  had  ruptured  the  cartilage  of  his  knee,*'' 
and  were  a  carman's  eye  which  had  been  weakened  as  the  result 
of  a  form.er  accident,  was  later  struck  by  his  horse's  tail,  and  so 
injured  that  its  removal  was  necessary.*'^  The  holdings  were  oth- 
erwise where  an  employe  sustained  a  fractured  collar  bone  which 
has  been  promptly  treated  and  immobilized,  but,  the  bandages  be- 
ing taken  off  twenty-eight  days  after  the  fracture,  within  two  or 
three  days  thereafter,  without  any  violent  blow  or  strain,  the  frac- 

43  Tarr  v.  Stockton  State  Hospital,  2  Cal.  I.  A.  C.  Dec.  591. 

44  Salvatore  v.  New  England  Casualty  Co.,  2  Cal.  I.  A.  C.  Dec.  355. 

45  Noden  v.  Galloways,  Ltd.  (1912)  5  B.  W.  C.  C.  7,  C.  A. 

46  Borland  v.  Watson.  Gow  &  Co.,  Ltd.   (1912)  5  B.  W.  C.  C.  514,  C.  A. 

47  Martin  v.  Barnett  (1910)  3  B.  W.  C.  C.  146,  C.  A. 


§  136  workmen's  compensation  518 

ture  came  apart  again/^  where  an  employe  suffered  from  disloca- 
tion of  the  shoulder  and  was  discharged  in  two  weeks  by  the  phy- 
sician as  cured,  and  at  once  sustained  another  dislocation  of  the 
same  member  while  bathing,*®  where  a  charwoman  limped  be- 
cause of  a  fall  on  the  office  staircase  of  her  employer,  and  the  day 
following  fractured  her  kneecap  by  a  fall  on  her  own  staircase,^'' 
and  where  a  workman  recovering  from  a  cerebral  hemorrhage  caus- 
ed by  overexertion  was  stricken,  four  days  after  the  lirst  attack  and 
before  he  had  returned  to  work,  with  a  second,  which  resulted  in 
paralysis  and  incapacity.^^  Where  one  employed  as  a  journeyman 
carpenter,  while  in  the  course  of  his  employment,  ran  a  splinter  in 
the  thumb  of  his  hand,  and,  attempting  to  remove  the  splinter  with 
a  pin,  blood  poison  resulted,  from  which  the  employe  died,  he  was 
not  guilty  of  injurious  practices  as  tending  to  impair  or  retard  his 
recovery  when  he  attempted  to  remove  the  splinter  from  the  flesh 
of  his  thumb. ^^ 

§  136.     Treatment  in  general 

Compensation  will  be  awarded  where  death  or  prolongation  of 
disability  follows  treatment,  which,  though  dangerous,  is  apparently 
necessitated  by  a  compensable  injury,  and  is  not  unskilled. ^^    Death 

48  Stormont  v.  Bakersfield  Laundry  Co.,  1  Cal.  I.  A.  C.  Dec.  533. 

49  Kordellos  v.  Northwestern  Pacific  Railroad  Co.,  1  Cal.  I.  A.  C.  Dec.  586. 
CO  Hodgson  V.  Robins,  Hay,  Waters  &  Hay  (1914)  7  B.  W.  C.  C.  232,  C.  A. 
siMcInnes  v.  Dunsmuir  &  Jackson,  Ltd.   (1909)  1  B.  W.  C.  C.  226,  Ct.  of 

Sess. 

5  2  Proiilx  V,  Hudson  &  Sons,  Bulletin  No.  1,  111.,  p.  45, 

5  3  Where  a  surgeon,  instead  of  amputating  the  injured  hand  of  a  work- 
man, sought  to  save  it  by  a  "bold  experiment,"  which  involved  two  separate 
operations,  and  the  workman,  after  passing  safely  through  the  first,  died 
under  the  anaesthetic  during  the  second,  it  was  held  that  death  resulted  from 
the  injury.  Shirt  v.  Calico  Printers'  Association,  Ltd.  (1910)  2  B.  W.  C.  C. 
342,  Where  a  workman  who  had  ruptured  himself  was  found  to  have  an- 
other rupture  of  long  standing,  and  the  success  of  the  operation  on  the  later 
hernia   demanded  a  double  operation,  and  he  died  eight  months  later,  the 


519  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION   DUE  §    13G 

resulting  from  disease  caused  by  an  operation  necessitated  by  an 
injury  is  likewise  compensable.^*  As  a  rule,  the  compensation 
recoverable  cannot  be  augmented  by  the  fact  that  the  disabling 
effects  of  the  injury  were  increased  or  prolonged  by  incompetent 
or  negligent  surgical  treatment,  though  the  employer  was  respon- 
sible therefor.^^     It  has  been  held  in  some  states,  however,  that 

second  operation  was  not  a  new  intervening  act,  such  as  to  bar  compensa- 
tion. Mutter,  Howey  &  Co.  v.  Tliomson  (1913)  6  B.  W.  C.  C.  424,  Ct.  of  Sess. 
In  Sirica  v.  Scovill  Mfg.  Co.,  1  Conn.  Comp.  Dee.  171,  it  was  lield  that 
where  the  employe,  though  rejecting  the  services  of  the  employer's  physi- 
cian, goes  to  a  physician  in  regular  standing,  compensation  is  not  to  be  re- 
duced because  the  treatment  secured  prolongs  his  incapacity  longer  than 
would  have  been  the  case  if  the  employer's  physician  had  treated  the  injury. 
Where  an  employe  who  fell  through  a  trap  door,  but  did  not  show  any  im- 
mediate serious  results,  was  given  first  medical  aid  by  the  employer,  and 
thereafter,  without  notice  to  the  employer,  went  to  a  hospital  and  had  her 
arm  operated  on,  of  which  she  lost  all  practical  use,  it  may  be  fairly  presum- 
ed that  there  is  a  partial  permanent  disability,  and  the  employer  is  liable 
therefor.     Blake  v.  Herskovitz,  Bulletin  No.  1,  111.,  p.  161. 

54  A  brewery  worker  in  the  bottling  department  of  the  subscriber  slipped 
and  fell,  dislocating  the  clavicle.  He  was  operated  upon  three  days  later  and 
died  of  hypostatic  pneumonia  caused  by  the  weakening  of  his  system  by  the 
operation.  The  widow  was  entitled  to  compensation.  Cantwell  v.  Travelers' 
Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  246  (decision  of  Com.  of  Arb.). 

Where  the  deceased  receives  an  accidental  injury,  including  a  laceration 
of  one  of  his  fingers,  and  gangrene  sets  in,  necessitating  amputation  of  the 
finger,  and  subsequently  amputation  of  the  forearm,  and  the  second  opera- 
tion results  in  pneumonia,  caused  immediately  by  the  effect  of  the  anaesthetic 
and  of  the  surgical  shock,  and  the  pneumonia  causes  death,  the  death  is 
proximately  caused  by  the  accidental  injury.  Favero  v.  Board  of  Public  Li- 
brary Trustees.  1  Cal.  I.  A.  C.  Dec.  225.  Where  an  employ^  sustains  a  frac- 
tured kneecap,  and  an  operation  is  later  performed  upon  him  to  wire  the 
separated  parts  of  the  kneecap  into  apposition,  so  that  the  fracture  might 
heal,  and  infection  develops  following  the  operation  and  causes  the  death  of 
the  patient,  such  death  is  proximately  caused  by  the  accident.  Peck  v.  San 
Francisco-Oakland  Terminal  Eys.,  1  Cal.  I.  A.  C.  Dec.  462. 

55  Ruth  V.  Witherspoon-Englar  Co.,  98  Kan.  179,  157  Pac.  403.  A  vicious 
union  resulting  to  the  broken  arm  of  a  workman  because  of  unskillful  treat- 
ment at  the  hospital  is  not  incapacity  resulting  from  the  accident.  Rocca 
V.  Stanley  Jones  &  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  101,  C.  A. 

Where  a  bonesetter  set  the  broken  arm  of  a  workman  so  poorly  that  there 


§  136  workmen's  compensation  520 

death  or  incapacity  resulting  from  negligent  or  unskillful  treat- 
ment by  a  physician  furnished  by  the  employer  or  whom  it  is  his 
duty  to  furnish  will  be  attributed  to  the  accident.^^ 

Under  the  California  Act,  the  industry  is  liable  for  all  legitimate 
consequences  following  from  an  accident,  among  which  is  the  pos- 
sibility of  an  error  of  judgment  or  unskillfulness  on  the  part  of  any 
attending  physician,  whether  called  in  by  the  employer  or  the  em- 
ploye.^^  But  where,  by  reason  of  an  oversight  of  the  workman's 
physician  in  misunderstanding  and  misreporting  the  result  of  a 
Wassermann  test  at  the  time  of  a  conference  upon  the  condition 
of  the  injured  employe,  a  very  painful  and  unnecessary  operation 
is  performed  upon  a  wrong  theory  of  the  cause  of  the  illness,  and 
by  reason  of  such  unnecessary  operation  the  period  of  disability  is 
greatly  prolonged,  and  no  cause  appears,  aside  from  this  factor, 
by  which  he  should  be  allowed  compensation  for  his  injury,  he  is 
not  entitled  to  compensation  by  reason  of  this  error  in  judgment 
and  unnecessary  operation,  even  though  the  insurance  company  ac- 
quiesced in  the  mode  of  treatment  prescribed  by  the  physician  and 
sanctioned  same.^^  Where  medical  testimony  shows  that  the  treat- 
ment given  for  the  injury  was  not  com.plete,  and  the  injury  for 
that  reason  recurs,  then,  in  the  absence  of  evidence  that  the  patient 
was  guilty  of  misconduct,  the  recurrence  is  considered  a  part  of 
the  original  injury  and  compensable  as  such.^^  The  causing  of  a 
hernia  and  the  strangulation  thereof  are  seldom  due  to  the  same 

was  a  vicious  union,  and  the  workman  refused  to  allow  the  breaking  and 
resetting  of  the  arm,  the  case  must  turn  on,  and  the  judge  must  decide, 
whether  the  incapacity  was  due  to  the  accident  or  to  the  negligence  of  the 
lionesetter.  Humber  Towing  Co.,  Ltd.,  v.  Barclay  (1912)  5  B.  W.  C.  C.  142, 
C.  A. 

sepawlak  v.  Hayes,  162  Wis.  503,  I.'jG  N.  W.  464;  Ross  v.  Erickson  Const. 
Co.,  89  Wash.  634,  1.55  Pac.  153. 

5  7  Salvatore  v.  New  England  Casualty  Co.,  2  Cal.  I.  A.  C.  Dec.  355. 

5  8  Spangler  v.  Philbin,  2  Cal.  I.  A.  C.  Dec.  158. 

69  Kordellos  v.  Northwestern  Pacific  Railroad  Co.,  1  Cal.  I.  A.  C.  Dec.  586. 


521  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUE  §    137 

accident.  Where  some  weeks  intervene  following  an  accident  be- 
fore strangulation  becomes  known,  the  responsibility  for  the  stran- 
gulation does  not  rest  upon  the  accident,  but  on  failure  to  receive 
proper  treatment  for  the  hernia.^*' 

§  137.     Neglect  and  refusal  of  operation  or  medical  services 

Injury  aggravated  or  extended  in  time  by  the  employe's  neglect  or 
disobedience  of  his  physician's  instructions  is  not  compensable  as  to 
the  additional  period."^    The  question  whether  a  refusal  to  submit 

6  0  Kiernan  v.  Turlock  Irrigation  District,  2  Cal.  I.  A.  0.  Dec.  259. 

61  An  injured  worliman  cannot  recover  compensation  for  an  increase  of 
disability  due  to  bis  failure  to  use  ordinary  care  to  avoid  aggravating  tbe 
injury.  Pacific  Coast  Casualty  Co.  v.  Pillsbury,  Industrial  Accident  Commis- 
sion, 171  Cal.  319,  153  Pac.  24.  Flagrant  disobedience  and  neglect  by  tbe 
injured  employe  of  tbe  instructions  of  tbe  physician  in  charge  of  tbe  case  will 
be  deemed  a  sufficient  defense  to  further  liability,  where  the  period  of  nor- 
mal recovery  has  expired.    Weaver  v.  Eyster  &  Stone,  1  Cal.  I.  A.  C.  Dec.  563. 

The  period  is  not  coextensive  with  the  period  of  actual  disability,  where, 
as  in  this  case,  it  is  reasonably  certain  that  the  injury  was  aggravated,  and 
the  disability  at  least  somewhat  extended,  by  neglect  on  the  part  of  the  in- 
jured man  to  follow  the  specific  directions  of  tbe  physician  in  charge  of  bis 
treatment.  Porter  v.  Noble,  1  Cal.  I.  A.  C.  Dec.  588.  Where  tbe  evidence 
shows  that  by  the  date  of  tbe  filing  of  the  application  for  compensation  the 
injured  employe  should  have  been  wholly  cured,  and  would  have  been  if  he 
had  given  bis  injured  leg  tbe  necessary  exercise  to  get  it  back  into  commis- 
sion, the  applicant  is  not  entitled  to  compensation  thereafter.  In  such  case 
there  is  no  other  way  except  to  bear  the  pain  of  using  the  leg  with  what 
fortitude  one  may,  to  give  the  injured  member  the  use  that  it  must  have  to 
function  properly.  It  would  be  unfair  to  charge  the  employer  with  a  disabili- 
ty prolonged  by  the  disinclination  of  the  injured  man  to  make  tbe  cure  com- 
plete. Mason  v.  Knight,  1  Cal.  I.  A.  C.  Dec.  493.  Where  the  neglect  or  re- 
fusal of  the  employe  to  demand  or  obtain  medical  treatment  causes  what 
might  be  a  slight  disability  to  become  a  serious  disability,  the  rights  of  the 
employer  are  not  as  defined  in  section  20  of  the  Act,  but  rather  as  in  section 
16  (e),  which  limits  the  liability  of  tbe  employer  to  that  portion  of  the  disa- 
bility which  is  proximately  caused  by  the  injury.  Telford  v.  Healy-Tib- 
bitts  Cons.  Co.,  3  Cal.  I.  A.  C.  Dec.  41. 

In  Bolton  v.  Bridgeport  Brass  Co.,  1  Conn.  Comp.  Dec.  515,  where  the  em- 
ploy6,  by  refusing  to  obey  his  physician's  orders  and  refusing  to  submit  to 
hospital  treatment,  lengthened  the  period  of  his  disability,  the  employer  was. 


§  137  workmen's  compensation  522 

to  skilled  treatment  for  the  restoration,  whole  or  partial,  of  capacity 
for  work,  is  an  unreasonable  refusal  such  as  will  preclude  recovery 

held  to  have  been  prejudiced  by  his  action,  and  the  indemnity  period  was 
shortened  to  that  time  for  which  the  claimant  would  have  been  incapacitated, 
had  he  submitted  as  requested.  But  in  Carlson  v.  Emanuelson,  1  Conn. 
Comp.  Dec.  139,  it  was  held  that  the  leaving  on  of  one  plaster  bandage  for 
two  weeks,  where  the  claimant  was  told  by  the  physician  to  return  for  more 
treatment  if  she  felt  worse,  but  did  not  go  because  she  lacked  funds,  was  not 
such  neglect  of  proper  medical  service  as  to  forfeit  compensation. 

Where  an  employ(5  refused  to  accept  treatment  from  a  physician  of  the 
employer,  and  did  not  follow  directions  and  advice  of  the  physician  to 
whom  he  went  for  treatment,  as  a  result  of  which  his  hand  became  some- 
what stifif,  the  condition  was  the  result  of  his  failure  to  accept  treatment, 
and  not  the  injury.  lanczewski  v.  Central  Locomotive  &  Car  Works,  Bulletin 
No.  1,  111.,  p.  32. 

Peritonitis. — WTiere  the  evidence  shows  that  applicant's  peritonitis  was 
caused  by  the  presence  of  a  foreign  body  in  the  abdomen,  which  had  been 
there  for  years  without  causing  trouble,  but  that  inflammation  therefrom 
was  precipitated  by  a  blow  upon,  or  strain  to,  the  abdomen,  caused  by  the 
injury  received,  and  that  there  was  no  other  factor  which  would  have 
caused  the  inflammation  at  that  time,  the  blow  or  strain  was  the  proximate 
cause  of  the  peritonitis.  Henne  v.  Hjul,  1  Cal.  I.  A.  C.  Dec.  133.  An  em- 
ploy6  was  injured  on  January  5th  by  an  elevator  or  hoist  being  lowered  upon 
him  while  he  was  at  work  in  the  shaft  in  which  the  hoist  was  operated.  He 
did  not  report  his  injury,  nor  did  he  consult  a  physician,  but  continued  to 
work  for  52  days  thereafter;  the  only  noticeable , efiect  of  the  injury  being 
black  and  blue  spots  upon  his  arm.  On  February  26th  he  suffered  a  collapse 
and  died  on  March  1st.  A  post  mortem  examination  disclosed  that  the  im- 
mediate cause  of  death  was  the  rupture  of  an  aneurism  of  the  ascending 
aorta.  Held,  that  the  death  was  not  from  an  injury  sustained  in  the  course 
of  the  employment.  In  re  Orlena  Stith,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com. 
p.  67.  Where  a  workman  contracted  a  disease  of  the  heart  from  the  continu- 
ous strain  of  his  work,  but  it  was  argued  that  he  was  susceptible  to  the  strain 
on  account  of  a  previous  accident,  it  was  held  that,  even  if  this  was  so,  the 
incapacity  did  not  result  from  the  accident.  Baton  v.  Dixon,  Ltd.  (1913) 
6  B.  W.  C.  C.  882,  Ct.  of  Sess. 

Meningitis. — Where  an  employ^  sustains  the  loss  of  a  toe  by  accident,  the 
wound  apparently  healing  within  a  few  weeks,  and  some  months  thereafter 
suffers  a  series  of  boils,  the  infection  from  these  boils  subsequently  pene- 
trating the  blood  system  and  causing  death  from  meningitis,  such  facts  are 
insufficient  to  establish  the  loss  of  the  toe  as  the  proximate  cause  of  the 
death.  Stephens  v.  Clarke,  2  Cal.  I.  A.  C.  Dec.  135.  Where  an  employ^  was 
thrown  from  the  wagon  and  run  over  in  a  runaway  of  his  team  and  sus- 


523  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION   DUE  §    137 

of  compensation,  is  necessarily  a  question  of  degree.  An  injured 
workman  need  not  in  every  case  submit  to  any  proposed  medical  or 
surgical  treatment,  under  the  penalty,  if  he  refuses,  of  forfeiture  of 
his  right  to  payments,  but  he  should  submit  to  such  treatment,  med- 
ical or  surgical,  as  involves  no  serious  risk  or  suffering;  he  should 
submit  to  such  an  operation  as  a  man  of  ordinarily  manly  character 
would  undergo  for  his  own  good,  in  a  case  where  no  question  of 
compensation  due  by  another  existed.*'^     The  proposition  that  one 

tained  apparently  no  serious  injury,  but  died  six  days  later  from  the  rup- 
ture of  an  aneurism  of  the  left  ventricle  of  the  heart,  the  Commission  held 
upon  conflicting  medical  testimony  that  the  death  was  proximately  caused 
by  the  runaway.    Martin  v.  City  of  Sacramento,  2  Cal.  I.  A.  C.  Dec.  701. 

6::  Donnelly  v.  Baird  &  Co.,  Ltd.,  45  Scottish  Law  Reporter  394.  Ander- 
son V.  Baird,  40  S.  L.  R.  263;  Dowd  v.  Bennie  &  Son,  40  S.  L.  R.  239. 
An  employe's  refusal  to  have  a  simple  operation  performed  on  request  of 
the  insurer  may  deprive  him  of  his  right  to  further  compensation.  Vitale  v. 
Fidelity  &  Deposit  Co.  of  Md.,  2  Mass.  Wk.  Comp.  Cases  425  (decision  of 
Indus.  Ace.  Bd.).  Where  the  workman  had  received  compensation  for  tem- 
porary disability,  he  was  not  entitled  to  compensation  for  permanent  disa- 
bility, which  could  have  been  avoided  by  a  safe  and  simple  surgical  operation. 
Lesh  v.  Illinois  Steel  Co.   (Wis.)  157  N.  W.  539. 

In  a  recent  Michigan  case  the  court  (opinion  by  Judge  Stone)  said:  "Un- 
der all  the  circumstances  of  the  case,  including  the  fact  that  Jendrus  was  a 
foreigner,  unable  to  speak  or  understand  the  English  language,  that  he  was 
suffering  great  pain  on  the  evening  of  the  14th,  that  he  wfis  unacquainted 
with  his  surroundings,  and  that  he  did  consent  to,  and  did  submit  to,  an 
operation  within  15  or  16  hours  after  it  was  first  found  necessary,  in  the 
judgment  of  the  surgeons,  we  cannot  hold,  as  a  matter  of  law,  that  the  con- 
duct of  Jendrus  was  so  unreasonable  and  persistent  as  to  defeat  the  claim 
for  compensation  by  his  widow.  Neither  can  we  hold  that  Jendrus  by  his 
conduct  in  the  premises  in  causing  a  delay  in  the  operation  was  guilty  of  in- 
tentional and  willful  misconduct.  We  cannot  say,  as  matter  of  law,  that  the 
Industrial  Accident  Board  erred  in  its  conclusions  of  law  in  aflirming  the 
action  of  the  Committee  on  Arbitration.  *  *  *  Counsel  for  appellants 
call  attention  to  the  English  Act,  which  provides,  as  ours  does,  for  the  pay- 
ment for  injuries  arising  out  of  and  in  the  course  of  the  employment,  but 
that  Act  does  not  provide  for  medical  care  by  the  employer,  and  it  is  urged 
that  in  Michigan,  if  the  employe  refuses  the  reasonable  medical  services  ten^ 
dered  by  the  employer,  he  is  refusing  compensation,  and  should  not  be  per- 
mitted to  compel  the  employer  to  pay  the  money  compensation,  while  at  the 


§  137  workmen's  compensation  52-1 

may  continue,  or  even  increase,  his  disability  by  his  willful  and 
unreasonable  conduct,  and  then  claim  compensation  from  his  em- 
ployer for  his  disability  so  caused,  is  untenable.®^  There  is,  of 
course,  no  question  of  compelling  him  to  submit  to  an  operation. 
The  question  is  whether  on  his  refusal  to  undergo  what  would  be 
described  by  experts  as  a  reasonable  and  safe  operation  he  is  to  be 
considered  as  a  sufiferer  from  the  effect  of  an  injury  received  in  the 
course  of  his  employment,  or  whether  his  suffering  and  consequent 
inability  to  work  at  his  trade  ought  not  to  be  attributed  to  his 
voluntary  action  in  declining  to  avail  himself  of  reasonable  surgical 
treatment.  In  order  to  test  the  principle  of  decision,  it  will  not  be 
amiss  to  follow  the  lead  of  the  able  opinion  in  a  Michigan  case 
and  suppose  a  more  simple  case.  A  workman  whose  trade  requires 
the  perfect  use  of  both  hands — a  watchmaker  or  an  instrument  mak- 
er, for  example — has  the  misfortune  to  break  one  of  the  bones  of  a 
finger,  and  from  want  of  immediate  assistance,  or  it  may  be  from 
neglect,  the  bone  does  not  unite  in  the  proper  way.  The  hand  is 
disabled;    but  he  is  advised  that  by  breaking  the  bone  at  the  old 

same  time  he  is  refusing  to  accept  tlie  medical  compensation.  It  is  urged 
tliat  under  tlie  Englisti  decisions  tlie  rule  bas  been  universally  laid  down  tbat, 
if  the  employ^  unreasonably  refuses  to  accept  the  medical  attention  offered 
by  the  employer,  he  forfeits  his  compensation.  And  our  attention  has  been 
called  to  the  follo\Ying  English  Cases :  Donnelly  v.  Baird  &  Co.,  Ltd.  (Court 
of  Sessions,  Scotland,  1908),  reported  in  45  Scottish  Law  Reporter,  394,  and 
1  Butterworth's  Workmen's  Compensation  Cases,  95.  The  appellee  has  called 
our  attention  to  the  case  of  Marshall  v.  Navigation  Co.,  [1910]  1  King's 
Bench  Div.  79,  to  the  effect  that,  where  an  injured  party  refuses  to  undergo 
a  surgical  operation,  the  employer  has  the  burden  of  showing  tbat  the  opera- 
tion would  have  accomplished  its  purpose.  Attention  is  also  called  by  ap- 
pellee to  the  case  of  Proprietors  of  Hays'  Wharf,  Ltd.,  v.  Brown,  3  B.  W. 
C.  C.  84,  to  the  effect  that  the  burden  is  upon  the  employer  to  show  that  the 
refusal  of  the  workman  was  unreasonable.  *  *  *  in  none  of  the  cases 
cited  by  appellants'  counsel  was  the  operation  anything  more  than  a  minor 
operation  for  a  trifling  injury.  We  think  the  cases  clearly  distinguishable 
from  the  instant  case,  which  involved  a  major  operation  of  a  serious  nature." 
.Teudrus  v.  Detroit  Steel  Products  Co.,  178  Mich.  265,  144  N.  W.  563,  L.  R.  A. 
1916A,  381,  Ann.  Cas.  1915D,  476. 

6  3  Lesh  v.  Illinois  Steel  Co.  (Wis.)  157  N.  W.  539. 


'525  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUE  §    137 

fracture  and  resetting  it  the  use  of  his  hand  will  be  completely  re- 
stored. This  is  a  case  where  the  operation  is  not  attended  with 
risk  to  health  or  unusual  suffering,  and  where  the  recovery  of  the 
use  of  the  hand  is  reasonably  clear.  If  in  such  a  case  the  sufferer, 
either  from  defect  or  moral  courage,  or  because  he  is  content  with  a 
disabled  hand  and  is  willing  to  live  on  what  he  is  receiving  under 
the  Compensation  Act,"  refuses  to  be  operated  on,  his  continued 
inability  to  work  at  his  trade  is  the  result  of  the  refusal  of  remedial 
treatment,  and  he  is  not  entitled  to  further  compensation.  Passing 
to  the  other  extreme,  it  is  easy  to  figure  a  case  of  internal  injury 
where  an  operation,  if  successful,  would  restore  the  suft'erer  to 
health,  but  where  the  surgeon  was  bound  to  admit  that  the  opera- 
tion was  attended  with  danger.  In  such  a  case  it  would  be  gen- 
erally admitted  that  there  was  not  only  a  legal,  but  a  moral,  right 
of  election  on  the  part  of  the  injured  person;  and,  if  he  preferred 
to  remain  in  his  disabled  condition  rather  than  incur  the  risk  of 
more  serious  disablement  or  death,  it  could  not  be  said  that  his 
inaction  disentitled  him  to  further  compensation.  In  view  of  the 
great  diversity  of  cases  raising  this  question,  no  general  principle 
can  be  laid  down  except  this:  "That  if  the  operation  is  not  at- 
tended with  danger  to  life  or  health,  or  extraordinary  suffering,  and 
if,  according  to  the  best  medical  or  surgical  opinion,  the  operation 
offers  a  reasonable  prospect  of  restoration  or  relief  from  the  in- 
capacity from  which  the  workman  is  suffering,  then  he  must  either 
submit  to  the  operation  or  release  his  employers  from  the  obligation 
to  maintain  him.  In  other  words,  the  statutory  obligation  of  the 
employer  to  give  maintenance  during  the  period  of  incapacity  re- 
sulting from  an  accident  is  subject  to  the  implied  condition  that 
the  workman  shall  avail  himself  of  such  reasonable  remedial  meas- 
ures as  are  within  his  power."  ^*     In  the  language  of  an  English 

6  4  Lord  McLaren,  in  Donnelly  v.  Baird  &  Co.,  Ltd.  (Court  of  Sessions,  Scot- 
land, 1908)  45  Scottish  Law  Reporter,  .394,  and  Jendrus  v.  Detroit  Steel  Prod- 
ucts Co.,  178  Mich.  265,  144  N.  W.  563,  L.  R.  A.  1916A,  381,  Ann.  Cas.  1915D, 
476.     Where  the  applicant  under  the  Workmen's  Compensation  Act  unrea- 


§  137  workmen's  compensation  526 

judge:  "The  test  is  not  really  whether  on  the  balance  of  medical 
opinion  the  operation  is  one  which  might  reasonably  be  performed. 
The  test  is  whether  the  workman  in  refusing  to  undergo  the  surgi- 
cal operation  acted  unreasonably."  °^     It  was  held  in  an  English 

sonably  refuses  to  undergo  a  safe  and  simple  surgical  operation,  which  is 
fairly  certain  to  result  in  a  removal  of  the  disability,  and  is  not  attended 
with  serious  risk  or  pain,  and  is  such  as  an  ordinarily  prudent  and  courageous 
person  would  submit  to  for  his  own  benefit  and  comfort,  no  question  of 
compensation  being  involved,  the  disability  which  the  claimant  suffers 
thereafter,  a  reasonable  time  being  allowed  for  recovery,  is  not  proximately 
caused  by  the  accident,  but  is  the  direct  result  of  such  unreasonable  refusal. 
No  question  of  compelling  the  applicant  to  submit  to  an  operation  is  in- 
volved. The  question  is :  Shall  society  recompense  a  workman  for  a  disa- 
bility caused  by  his  unreasonable  refusal  to  adopt  such  means  to  effect  a 
recovery  as  an  ordinarily  prudent  person  would  use  under  like  circumstances, 
and  which  would  result  in  the  removal  of  the  disability  within  the  rule  as 
stated  above?  It  is  true  that  the  compensation  awarded  under  the  terms  of 
the  Act  is  not  damages  in  the  technical  sense,  and  that  the  rules  relating 
thereto  are  not  to  be  applied  in  cases  arising  under  this  Act,  and  cases  have 
been  cited  simply  for  the  purpose  of  shoAving  that  damages  accruing  as  a 
direct  result  of  the  claimant's  unreasonable  refusal  to  submit  to  reasonable 
medical  and  surgical  treatment  where  the  results  are  fairly  certain,  were 
not  even  in  tort  cases  held  to  be  proximately  caused  by  the  accident.  Lesh 
v.  Illinois  Steel  Co.  (Wis.)  157  N.  W.  5-39.  Where  it  reasonably  appears  that 
the  result  of  an  operation  will  be  a  real  and  substantial  physical  gain,  and 
that  the  claimant  will  not  be  subjected  to  unusual  risk  from  the  anaesthetic 
to  be  employed  or  from  the  nature  of  the  proposed  operation,  he  should  sub- 
mit to  the  operation.  Floccher  v.  Fidelity  &  Deposit  Co.  of  Maryland,  221 
Mass.  54,  108  N.  E.  1032;  Tutton's  Case  (1909)  2  K.  B.  54;  O'Neill  v.  Brown  & 
Co.,  Ltd.  (1913)  S.  C.  653. 

p  ^  Cozens-Hardy,  M.  R.,  in  Tutton  v.  Owners  of  S.  S.  Majestic,  1910,  2 
B.  W.  C.  C.  346,  C.  A. 

Where  a  workman  refused  to  have  an  eye,  the  sight  of  which  he  had  lost, 
removed  in  order  to  prevent  the  risk  of  injury  to  the  other  eye  by  sup- 
puration from  the  dead  one,  his  refusal  was  not  unreasonable  (Braithwaite 
&  Kirk  V.  Cox  [1912]  5  B.  W.  C.  C.  77,  C.  A.) ;  nor  was  it  where  a  totally  dis- 
abled workman  refused  to  undergo  an  operation  because  his  medical  advisor 
said  it  would  result  in  a  stiff  knee  joint,  and  if  successful  would  only  have 
made  his  earning  power  half  what  it  was  before  the  accident  (Molamphy  v. 
Sheridan  et  al.  [1914]  7  B.  W.  C.  C.  957,  C.  A.) ;  but  where  a  miner's  finger, 
after  having  been  crushed,  remained  stiff,  and  its  amputation — a  simple  oper- 
ation involving  no  risk  and  but  little  pain — was  advised  by  all  his  doctors, 


527  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §    137 

case  that,  where  a  workman  was  injured  by  an  accident  in  respect 
to  which  he  was  otherwise  entitled  to  receive  compensation,  and  re- 

and  would  have  enabled  him  to  return  to  his  old  work,  his  refusal  to  sub- 
mit unless  given  a  "guarantee  of  success"  was  unreasonable.  Walsh  v.  Locke 
&  Co.,  Ltd.,  (1914)  7  B.  W.  C.  C.  117,  C.  A. 

In  Krasmeski  v.  New  Haven  Clock  Co.,  1  Conn.  Corap.  Dec.  699,  where  the 
sight  of  claimant's  eye  had  been  destroyed,  so  that  he  had  less  than  one-tenth 
vision,  but  it  appeared  that  by  an  operation  he  might  recover  up  to  one-half 
vision  by  use  of  a  cataract  lens,  which  would,  however,  disable  him  from  the 
use  of  the  other  eye,  it  was  held  that,  while  an  operation  was  in  the  abstract 
advisable,  it  was  so  near  the  border  line  of  reasonableness  that  the  commis- 
sioner could  not  compel  the  employe  to  accept  such  operation,  and  compensa- 
tion for  disability  was  awarded.  In  Sczerbowicz  v.  City  of  New  Britain,  1 
Conn.  Comp.  Dec.  671,  where  the  workman  suffering  from  a  hernia  sustained 
by  strain  while  at  work  refused  an  operation  offered  by  the  employer,  com- 
pensation was  awarded  for  the  amount  of  incapacity  which  would  have 
resulted  had  he  accepted  the  operation,  and  the  award  made  subject  to  being 
reopened  in  case  he  submitted  to  an  operation  within  a  certain  time.  In 
Aquilano  v.  Lambo,  1  Conn.  Comp.  Dec.  145,  where  the  workman  was  awarded 
compensation  for  total  incapacity  due  to  an  irreducible  hernia,  which  might  be 
cured  by  an  operation  not  dangerous  or  very  serious,  the  award  was  made  con- 
tingent upon  the  employe's  submission  to  an  operation  for  his  cure  within  a 
reasonable  time.  In  Slater  v.  New  Britain  Trap  Rock  Co.,  1  Conn.  Comp.  Dec. 
501,  where  it  was  shown  that  a  claimant  who  had  been  receiving  incapacity 
indemnity  for  an  injury  to  his  fingers  would  be  practically  certain  to  recover 
the  normal  use  of  the  other  fingers,  if  the  second  finger  were  amputated  at 
the  middle  joint,  and  that  the  danger  of  the  operation  was  not  over  one-half 
per  cent.,  but  the  workman  refused  the  operation  because  improvement  was 
not  absolutely  certain,  and  because  he  did  not  want  his  hand  mutilated,  it 
was  held  the  existing  incapacity  was  due  to  his  refusal,  and  not  to  the  original 
injury,  and  compensation  was  suspended  until  he  would  submit. 

Incapacity  not  resulting  from  the  injury:  Where  a  workman  refused  to 
submit  to  simple  or  minor  surgical  operations  upon  his  injured  hand  which 
were  not  attended  with  appreciable  risk  or  pain  and  which  were  apt  to  re- 
store his  capacity  for  work.  Donnelly  v.  Baird  &  Co.,  Ltd.  (1909)  1  B.  W.  C. 
C.  95,  Ct.  of  Sess.  Where  a  workman  with  an  injured  foot  refused  to  undergo 
an  operation  to  remove  a  piece  of  bone,  the  operation  being  simple  and  in- 
volving scarcely  appreciable  risk.  Warncken  v.  Moreland  &  Son,  Ltd.  (1910) 
2  B.  W.  C.  C.  350,  C.  A.  Where  a  workman  refused  to  submit  to  a  safe  and 
easy  operation  upon  his  injured  knee,  although  both  his  own  doctors  and 
those  of  his  employers  recommended  it.  Paddington  Borough  Council  v.  Stack 
(1910)  2  B.  W.  C.  C.  402,  C.  A.     Where  a  workman  refused  to  submit  to  a 


§  137  workmen's  compensation  528 

fused  to  submit  to  a  surgical  operation  of  a  simple  character  in- 
volving no  serious  risk  to  life  or  health,  and  w^hich,  according  to 
the  unanimous  professional  evidence,  offered  a  reasonable  prospect 
of  the  removal  of  the  incapacity  from  which  he  suft'ered,  that  under 
those  circumstances  he  had  debarred  himself  from  any  right  to 
claim  further  compensation  under  the  act  for  his  continued  dis- 
ability, as  such  continuance  was  not  attributable  to  the  original 
accident,  but  to  his  unreasonable  refusal  to  avail  himself  of  sur- 
gical treatment.  In  that  case  the  claimant  had  injured  his  foot  and 
had   two   toes   removed.      He   still   suffered  pain,   and   the   X-ray 

slight  operation  to  break  down  adhesions  which  had  formed  in  his  inpjred 
arm.  Wheeler,  Ridely  &  Co.  v.  Dawson  (1912)  5  B.  W.  C.  C.  645,  C.  A.  Where, 
after  the  amputation  of  a  workman's  injured  thumb,  a  second  operation  seek- 
ing to  remove  the  sensitiveness  from  the  injured  part,  was  performed,  but 
unsuccessfully,  and,  although  the  operations  were  simple  and  without  serious 
risk  or  pain,  he  refused  to  submit  to  a  third,  which  would  probably  have 
accomplished  the  end  sought.  Anderson  v.  Baird  &  Co.,  Ltd.  (1903)  5  F.  373, 
Ct.  of  Sess.  Where  an  injured  workman's  doctors  told  him  that  a  proposed 
operation  would  not  lessen  his  incapacity  at  all,  and  he  refused  to  submit  to 
it,  although  it  was  admittedly  a  minor  operation  and  unattended  with  risk. 
O'Neill  v.  Brown  &  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  428,  Ct.  of  Sess. 

Incapacity  resulting  from  the  injury:  Where  a  workman  who  had  been  in- 
jured refused  to  undergo  an  operation  which  was  attended  with  some  risk, 
though  it  would  probably  have  been  successful.  Rothwell  v.  Davies  (1903) 
5  B.  W.  C.  C.  141,  C.  A.  Where  a  ship's  fireman  refused  to  submit  to  a  minor 
operation  on  his  injured  finger,  but  the  medical  testimony  was  conflicting 
as  to  whether  the  operation  would  have  saved  the  finger,  which  was  later 
taken  off.  Marshall  v.  Orient  Steam  Navigation  Co.,  Ltd.  (1910)  3  B.  W.  C. 
C.  15,  C.  A.  Where  a  hospital  doctor  advised  an  operation  on  an  injured 
workman  who  had  sustained  a  double  rupture,  but  his  own  doctor  advised 
against  it,  because  the  workman  had  Bright's  disease  and  so  could  not  take 
the  anaesthetic  without  risking  his  life.  Tutton  v.  Owners  of  S.  S.  Majestic 
(1910)  2  B.  W.  C.  C.  346,  C.  A.  Where  a  workman  ruptured  by  accident 
refused  seven  years  later  to  submit  to  an  operation,  which  was  advised  by 
three  doctors  and  advised  against  by  a  fourth.  Kuabon  Coal  Co.  v.  Thomas 
(1910)  3  B.  W.  C.  C.  32,  C.  A.  Where  an  injured  workman  was  advised  by 
two  of  his  employer's  surgeons  to  undergo  an  operation,  but  it  was  undisputed 
on  the  appeal  that  an  eminent  surgeon  had  recommended  that  no  operation 
be  performed.  Sweeney  v.  Pumpherston  Oil  Co.,  Ltd.  (1903)  5  F.  972,  Ct.  of 
Sess. 


529  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUE  §    137 

showed  that  a  piece  of  bone  was  loose  in  the  big  toe.  The  doctors 
advised  an  operation;  but  the  man  refused.  Moulton,  L.  J.,  said: 
"To  hold  the  contrary  would  lead  to  this  result  that  a  workman 
who  had  an  injury,  however  small,  might  refuse  to  allow  it  to  be 
dressed,  and  let  a  trivial  burn,  say,  become  a  sloughing  sore,  and 
lead  to  partial  or  total  incapacity.  *  *  *  The  distinction  is  be- 
tween being  reasonable  and  unreasonable."  "^  This  case  was  fol- 
lowed by  a  case  wherein  it  was  held  that  a  workman  injured  by  an 
accident  arising  out  of  and  in  the  course  of  his  employment  within 
the  meaning  of  the  Act,  who  refuses,  on  the  advice  of  his  own  doc- 
tor, to  submit  to  the  surgical  operation,  which  in  the  opinion  of 
such  medical  man,  involved  some  risk  to  his  life,  is  not  acting  un- 
reasonably in  such  refusal,  and  is  not  thereby  precluded  from  claim- 
ing compensation  from  his  employer  under  the  Act  in  respect  of  his 
continued  disability  to  work.  There  the  court  said :  "I  altogether 
decline  to  say  that,  in  case  of  an  operation  of  this  kind,  a  workman 
can  be  said  to  act  unreasonably  in  following  the  advice  of  an  un- 
impeached  and  competent  doctor,  even  though  on  the  balance  of 
medical  evidence  given  at  a  subsequent  date  the  learned  county 
court  judge  might  hold  that  the  operation  was  in  its  nature  one 
which  might  reasonably  and  properly  be  performed.*'^  In  the 
Michigan  case  above  mentioned  it  was  held  that  it  was  not  a  mat- 
ter of  law  whether  a  foreign  laborer  who  spoke  no  English  was  so 
unreasonable  in  his  refusal  to  consent  to  an  immediate  operation 
for  an  injury  to  the  intestines  that  a  recovery  for  his  death  should 
be  defeated ;  it  appeared  that  he  consented  to  the  operation  on  the 
following  day,  and  that  as  a  result  he  contracted  pneumonia,  which, 
together  with  the  peritonitis  from  the  injury  to  his  intestines,  re- 
sulted fatally,  and  it  not  appearing  that  an  earlier  operation  would 

6  6  Warncken  v.  Moreland  &  Son,  Ltd.  (Court  of  Appeal,  England,  1908)  100 
Law  Times,  12,  2  B.  W.  C.  C.  350. 

6  7  Tutton  V.  Owners  of  Steamship  Majestic  (Court  of  Appeal,  1909)  100  L. 
T.  &44,  2  B.  W.  C.  C.  346. 

HoN.CoMP. — 34 


§  137  workmen's  compensation  530 

absolutely  have  saved  his  life,  or  that  a  recovery  would  have  been 
impossible  if  there  had  been  no  operation.^* 

Whether  refusal  or  neglect  of  medical  treatment  or  care  will 
prevent  the  result  from  being-  attributed  to  the  accident  depends,  as 
in  case  of  refusal  of  an  operation,  on  whether  the  workman's  con- 
duct is  reasonable  or  unreasonable.*'® 

Lord  Justice  Clerk,  in  Donnelly  v.  Baird  &  Co.,  Ltd.,  said:  "The 
question  whether  a  refusal  to  suknit  to  a  skilled  treatment  for  the 
restoration,  whole  or  part,  of  capacity  for  work,  is  an  unreasonable 
refusal,  is  necessarily  a  question  of  degree.  For  it  cannot  be  main- 
tained that,  no  matter  what  the  severity  of  the  operation  recommend- 
ed, or  how  great  soever  the  risk  to  life  or  general  health  of  the  treat- 
ment, the  workman  loses  his  right  to  compensation  unless  he  brings 
himself  to  undergo  the  treatment  or  take  the  risk."  It  must  be  con- 
cluded that  a  workman  who  has  been  incapacitated  is  not  bound  in 
every  case  to  submit  to  any  treatment.  Unreasonable  neglect  or  refus- 
es jendrus  V.  Detroit  Steel  Products  Co.,  178  Mich.  265,  144  N.  W.  563,  L. 
R.  A.  1916A,  381,  Ann.  Cas.  1915D,  476. 

CO  Wliere  a  workman  who  injured  his  anlde  did  not  adopt  proper  measures 
for  its  cure,  and  after  paying  compensation  for  three  years  the  employers 
applied  for  review.  It  was  held  that  the  incapacity  resulted  from  the  work- 
man's own  fault  and  neglect,  and  not  from  the  injury.  Dowd  v.  Benuie  & 
Son  (1903)  5  F.  268,  Ct.  of  Sess.  Where,  on  review,  the  judge  found  that  the 
disobedience  of  a  workman,  who  had  fractured  his  shoulder,  to  instructions 
of  his  surgeon  that  he  exercise  his  arm,  was  due  to  his  nervous  condition, 
and  was  not  an  unreasonable  action,  his  decision  was  a  correct  finding  within 
his  duty.  Smith  v.  Cord  Taton  Colliery  Co.,  Ltd.  (1900)  2  W.  C.  C.  121,  C.  A. 
Where  a  workman,  suffering  with  pneumonia  contracted  as  a  result  of  an 
injury,  refused  to  heed  his  doctor's  warning,  but  insisted  that  he  be  taken 
home  from  the  hospital,  and  died  two  days  later,  it  was  held  that  his  action 
was  reasonable,  and  that  the  death  resulted  from  the  injury.  Dunnigan  v. 
Cavan  &  Lind  (1911)  4  B.  W.  C.  C.  386,  Ct.  of  Sess.  On  application  of  the 
employers  for  review  in  a  case  where  a  workman  was  advised  by  his  em- 
ployer's doctor  to  exercise  his  injured  hand,  but  was  advised  by  his  own 
doctor  that  such  exercise  would  do  no  good,  and  he  did  not  exercise  it,  it  was 


531  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUB  §    137 

al  will  ordinarily  preclude  or  limit  recovery;  ""^  but,  as  said  by  Com- 
missioner Russell :  "A  claimant,  particularly  one  having  slight  fa- 
held  that  his  incapacity  resulted  from  the  injury.  Moss  &  Co.  v.  Akers  (1911) 
4  B.  W.  C.  C.  291,  C.  A. 

7  0  In  Crofut  v.  Bredow  &  Bohm,  1  Conn.  Comp.  Dec.  524,  where  it  appeared 
that,  if  claimant's  slight  injury  had  been  properly  and  promptly  cared  for  and 
treated  with  antiseptics,  chance  of  its  causing  incapacity  would  have  been 
very  slight,  but  that  because  claimant,  without  giving  his  employer  any  oppor- 
tunity to  furnish  treatment,  treated  the  injury  himself,  infection  had  resulted, 
incapacitating  him  for  8  weeks,  compensation  was  denied.  In  De  Rosa  v. 
Fred  T.  Ley  &  Co.,  1  Conn.  Comp.  Dec.  75,  where  it  was  determined  that  claim- 
ant's incapacity  subsequent  to  26  weeks  was  due  to  neglect  and  failure  to 
procure  proper  medical  treatment,  it  was  held  he  could  not  recover  compensa- 
tion beyond  that  period.  In  Eccles  v.  Scovill  ^Ifg.  Co.,  1  Conn.  Comp.  Dec. 
241,  where  the  workman  did  not  notify  his  employers  that  some  steel  sliver.s 
had  punctured  his  thumb,  nor  avail  himself  of  hospital  emergency  treatment 
provided  by  the  employers  to  prevent  infection,  which  was  shown  to  have 
prevented  infection  in  all  but  3  of  over  2,500  cases,  but  neglected  to  secure 
any  treatment  whatever  until  the  infection  was  well  advanced,  such  workman 
being  a  skilled  mechanic  of  more  than  ordinary  intelligence,  it  was  held  his 
conduct  was  so  unreasonable  and  negligent  of  proper  treatment  that  it  deprived 
him  of  the  right  to  compensation.  In  Sebestini  v.  Fred  T.  Ley  &  Co.,  Inc.,  1 
Conn.  Comp.  Dec.  5G9,  where  it  appeared  that,  had  the  workman  submitted 
to  proper  medical  treatment  furnished  by  his  employer,  the  injury  to  liis 
finger  would  not  have  caused  incapacity  for  more  than  4  weeks,  but  that,  due 
to  his  refusal  of  proper  treatment,  he  would  probably  lose  the  use  of  two 
phalanges  of  the  finger,  compensation  was  awarded  on  the  basis  of  4  weeks' 
incapacity.  But  in  Costa  v.  C.  W.  Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  457, 
where  the  workman  did  not  think  the  abrasion  of  his  eye  was  of  sufficient 
importance  to  require  medical  care,  and  an  agent  of  the  employer,  who  was 
notified  the  day  after  the  accident  and  who  examined  the  eye  and  offered 
medical  services,  acquiesced  in  this  view,  until  infection  had  set  in,  causing 
loss  of  sight,  it  was  held  the  claimant's  conduct  was  not  such  as  to  bar  re- 
covery. And  in  Barton  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec. 
227,  where  the  workman  considered  a  scratch  on  his  hand  of  no  consequence, 
and  did  not  procure  medical  treatment  for  some  time,  but  it  was  not  shown 
that  the  employer  had  ever  cautioned  him  as  to  the  danger  of  infection  from 
slight  wound,  nor  ever  actively  provided  any  emergency  treatment  for  injured 
employes,  it  was  held  there  was  no  serious  or  unreasonable  neglect  such  as 
would  forfeit  compensation. 

Where  a  workman  with  an  infected  thumb,  after  having  it  treated  at  a 
hospital  where  he  was  working,  was  urged  by  the  nurse  to  remain  in  the 
hospital  for  treatment,  but  refused  the  free  medical  services  offered  him  and 


§  137  workmen's  compensation  532 

miliarity  with  our  language,  and  of  slight  means,  is  held  only  to  a 
reasonable  degree  of  diligence  in  taking  steps  to  see  that  efforts  are 
made  toward  effecting  a  cure.  Mankind  in  general  is  careless  in 
matters  of  this  nature,  and  that  fact  is  to  be  taken  into  account  in 
determining  rights  growing  out  of  injuries  requiring  treatment. 
Great  diligence  is  not  to  be  looked  for  or  expected."  ^^ 

The  provisions  of  the  California  Act  that  compensation  shall  not 
be  paid  for  disability  so  far  as  it  is  caused,  continued,  or  aggravated 
by  an  unreasonable  refusal  to  submit  to  medical  or  surgical  treat- 
ment the  risk  of  which  is  inconsiderable  in  view  of  the  seriousness 
of  the  injury  does  not  exclude  all  other  exceptions  and  authorize  the 
commission  to  award  compensation  for  subsequent  injuries  not  oc- 
curring during  the  employment.^^  The  above-stated  test  of  rea- 
sonableness has  apparently  been  used  in  applying  this  statute  to 
the  particular  cases, '^^    The  California  Commission  has  stated  that 

o-ent  home,  where  the  infection  developed  seriously  before  he  sought  a  physi- 
cian, the  resulting  incapacity  was  not  the  proximate  result  of  his  injury,  but 
of  his  failure  to  accept  the  proper  treatment.  Christiansen  v.  St.  Mary's 
Hospital,  Rep.  Wis.  Indus.  Com.  1914r-15,  p.  20. 

71  Carlson  v.  Emanuelson,  1  Conn.  Comp.  Dec.  139. 

72  (Wk.  Comp.  Act,  §  16,  par.  "e").  McCay  v.  Bruce,  2  Cal.  I.  A.  C.  Dec. 
975,  171  Cal.  319,  153  Pac.  24. 

73  The  employ§,  a  native  of  Turkey,  refused  to  undergo  an  operation  because 
he  and  his  family  and  countrymen  would  be  distressed  at  the  appearance  of 
his  hand  with  the  finger  removed,  when  he  returned  home.  The  medical 
testimony  showed  that,  if  a  simple  operation  were  performed,  he  would  be 
recovered  therefrom  and  able  to  resume  his  regular  work  in  six  weeks  there- 
after. It  was  held  that  the  employe's  refusal  to  undergo  the  operation  was 
unreasonable,  and  that  his  compensation  for  total  or  partial  incapacity  should 
terminate  at  the  end  of  six  weeks  from  date  of  hearing.  Ollie  v.  Travelers' 
Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  676  (decision  of  Com.  of  Arb.).  The 
employ^  received  a  personal  injury  while  lifting  a  bale  of  scrap  metal,  by 
reason  of  which  a  hernia  developed  in  the  right  inguinal  region.  Compensa- 
tion having  been  paid  for  two  months,  the  insurer  ofCered  an  operation  for 
the  radical  cure  of  the  hernia  without  cost  to  the  employ^.  This  was  de- 
clined by  the  employe  after  time  had  been  given  in  which  to  consider  the 
offer,  and  after  having  been  informed  that  a  refusal  would  be  regarded  as 
unreasonable  by  the  Committee.    The  Commission  held  that  the  employe  was 


533  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUE  §    137 

it  will  apply  to  employes  who  neglect  or  refuse  to  have  themselves 
properly  cared  for  the  same  principles  regarding  such  neglect  that 

not  incapacitated  for  work  by  reason  of  the  injury.  Yulvanovitch  v.  Mass. 
Employes'  Insur.  Ass'n,  2  Mass.  Wk,  Comp.  Cases,  787  (decision  of  Com.  of 
Arb.). 

The  workman  suffered  an  injury  which  necessitated  an  operation,  but  re- 
fused to  allow  an  operation  until  the  next  day,  although  he  was  told  that  it 
was  necessary.  While  the  operation  was  being  performed,  he  vomited,  and 
some  of  the  vomit  was  drawn  into  his  lungs,  causing  pneumonia,  which  re- 
sulted in  his  death.  The  Board  held  that  the  refusal  to  be  operated  on  when 
first  requested  was  not  so  unreasonable  as  to  defeat  the  claim  for  compensa- 
tion, since  the  employe  finally  consented  when  convinced  that  the  operation 
was  absolutely  necessary.  Detroit  Steel  Products  Co.  v.  Jendrus,  Op.  Mich. 
Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  21. 

\\Tiere,  because  of  the  employe's  refusal  to  have  performed  an  operation 
tendered,  his  disability  was  thereby  prolonged  beyond  a  normal  period,  the 
refusal  of  the  employer  to  pay  compensation  beyond  such  normal  period  was 
justifiable.  Wheatley  v.  Smith,  2  Cal.  I.  A.  C.  Dec.  910.  Where,  under  medical 
advice,  an  employer  offered  an  operation  to  break  up  adhesions  and  improve 
a  deformity  resulting  from  an  accidental  fracture  of  the  shoulder  of  his 
employe,  59  years  of  age,  and  the  employe,  upon  advice  received  from  her 
physicians  that  improvement  from  such  an  operation  was  doubtful,  refused 
to  submit  to  the  operation  on  this  ground  and  on  that  of  her  age  and  the  re- 
quirement of  anaesthetics,  such  a  refusal  was  justified.  Leonard  v.  Fremont 
Hotel,  2  Cal.  I.  A.  C.  Dec.  998.  Where  an  employe  is  suffering  from  hernia 
caused  by  injuries  received  in  the  course  of  his  employment,  and  the  employer 
offers  to  make  arrangements  for,  and  defray  all  expenses  of,  an  operation  by  a 
skilled  physician  at  a  reputable  hospital  to  cure  said  hernia,  and  the  employe 
refuses  such  operation,  because  he  does  not  like  the  hospital  chosen,  and 
wished  the  operation  to  be  performed  by  his  own  family  physician,  such 
refusal  is  unreasonable,  and  the  employ^  is  not  entitled  to  compensation  in  so 
far  as  his  disability  is  caused,  continued,  or  aggravated  by  such  refusal.  (Wk. 
Comp.,  etc.,  Act,  §  16)  McNamara  v.  United  States  Fidelity  &  Guaranty  Co.,  1 
Cal.  I.  A.  C.  Dec.  138.  The  employer  and  the  industry  should  not  be  charge- 
able with  a  disability  prolonged  by  unreasonable  and  inexcusable  neglect  to 
secure  treatment  from  a  competent  physician.  Where  the  evidence  shows  that, 
had  the  applicant  been  properly  treated,  he  would  certainly  have  recovered 
within  12  weeks  from  the  date  of  the  accident,  and  that  his  disability  was 
prolonged  by  unreasonable  failure  to  secure  medical  treatment,  compensation 
will  not  be  allowed  for  a  greater  period  than  10  weeks'  disability  following 
the  waiting  period  of  2  weeks.  Brown  v.  Corona  Citrus  Ass'n,  2  Cal.  I.  A.  C. 
Dec.  144.  Where  a  partial  disability  is  shown,  which  may  continue  indefi- 
nitely, and  competent  medical  authorities  advise  that  it  can  be  removed  by 


§  137  workmen's  compensation  534 

it  applies  to  employers  who  neglect  or  refuse  to  furnish  requisite 
treatment  to  their  injured  workmen.'''*  The  Commission  has  fur- 
operation  without  serious  risk,  and  it  may  be  clieaper  for  tlie  employer  to 
pay  all  costs  of  such  operation,  instead  of  paying  the  weekly  disability  benefits 
indefinitely,  the  Commission  will  make  the  same  award  as  has  heretofore 
been  made  for  hernia,  namely,  that  the  employer  may  tender  all  proper  costs 
and  arrangements  for  such  operation  by  competent  surgeons,  with  hospital 
facilities,  nursing,  and  compensation  for  loss  of  time  while  totally  disabled 
by  such  operation,  in  lieu  of  weekly  disability  benefits,  and  if  the  employe 
refuses  to  undergo  such  operation,  all  compensation  payments  shall  cease 
pending  such  refusal.  Mitchell  v.  McNab  &  Smith,  1  Cal.  I.  A.  C.  Dec.  116. 
Where  as  the  result  of  accidental  injury  the  workman  is  suffering  from  in- 
ternal disability  of  doubtful  nature,  but  probably  kidney  trouble,  and  after 
months  of  medical  treatment,  with  continuing  disability,  the  physicians  advise 
an  exploratory  operation  as  the  only  chance  of  improvement  and  recovery, 
and  it  appearing  that  the  risk  was  inconsiderable  in  view  of  the  seriousness 
of  the  injury,  the  employer,  after  offer  of  such  operation  at  its  own  exjiense 
and  the  refusal  of  applicant  to  submit  thereto,  is  released  from  further  lia- 
bility for  the  continuance  of  the  disability.  Jaco  v.  Los  Angeles  Gas  »&  Elec- 
tric Co.,  2  Cal.  I.  A.  C.  Dec.  512.  WJiere,  after  the  Commission  has  determined 
that  an  operation  will  be  advisable  to  relieve  the  disability  of  an  injured 
employe,  and  that  its  risk  is  inconsiderable  in  view  of  the  seriousness  of  the 
injury,  the  injured  employe  continues  to  refuse  to  accept  it,  his  insurance 
carrier  is  authorized  to  terminate  payments  of  disability  compensation  during 
the  period  of  such  refusal  to  submit  to  proper  medical  or  surgical  treatment. 
Upon  request,  the  Industrial  Accident  Commission  will  also  give  notice  to  the 
employe  that,  if  he  fails  to  accept  such  offer  within  a  short  period  from  the 
date  of  said  notice,  all  his  rights  to  compensation  will  be  forever  barred,  and 
will  thereafter  enter  its  order  terminating  payments  of  compensation  in  the 
event  of  continued  refusal.  Aylward  v.  Oceanic  Steamship  Co.,  2  Cal.  I.  A. 
C.  Dec.  95.  Where  medical  treatment  or  appliances  are  tendered  by  employer 
or  insurance  carrier  upon  the  advice  of  the  surgeon  in  charge,  the  Commis- 
sion can  require  the  injured  person  to  accept  such  treatment  or  forego  further 
compensation,  and  will  use  its  power  to  facilitate  recovery  of  the  patient  from 
his  injury.  Burkard  v.  San  Francisco  Breweries,  Ltd.,  2  Cal.  I.  A.  C.  Dec.  365. 
Where  an  injured  employe  is  suffering  from  a  disability  which  can  be  cured 
by  operation,  and  a  temporary  total  disability  award  was  made  in  his  favor, 
the  payments  to  continue  until  the  termination  of  his  disability,  the  Commis- 
sion will  provide  in  the  award  that  such  payments  shall  be  suspended  upon 
the  offering  to  the  applicant  of  an  operation  to  cure  his  injury  at  the  expense 
of  the  employer  or  insurance  carrier  and  its  refusal  by  such  employe.    Printy 

li  Brown  v.  Corona  Citrus  Ass'n,  2  Cal.  I.  A.  C.  Dec.  144. 


535  CIRCUMSTANCES   UNDER  WHICH   COMPENSATION  DUE  §   137 

ther  said  that  where  an  employe,  following  an  accident  causing 
hernia,  is  offered  his  choice  of  an  operation  or  a  truss,  and  because 
of  pressing  family  reasons  at  the  time  he  accepts  a  truss,  and  within 
a  reasonable  time  thereafter  requests  an  operation,  such  operation 
will  be  awarded  if  the  applicant  is  otherwise  entitled  thereto.  The 
act  of  the  employe  in  endeavoring  to  settle  his  claim  by  the  re- 
ceipt of  a  truss  instead  of  having  an  operation  performed  is  not 
binding  unless  and  until  approved  by  the  Commission.  Settlements 
by  injured  employes  waiving  a  necessary  operation  will  not  be 
approved  where  the  best  interests  of  all  parties  concerned  dictate 
that  the  employe  be  cured  of  his  condition,  if  the  law  otherwise 
authorizes  such  relief.^^  Where  the  employe's  refusal  of  an  opera- 
tion or  medical  treatment  is  due  to  ignorance  or  mistake,  he  may  be 
given  another  chance  to  accept  such  treatment. '^^ 

V.  Jacobsen-Bade  Co.,  1  Cal.  I.  A.  C.  Dec.  519.  If  an  employe  is  offered  medical 
treatment  at  the  expense  of  his  employer  after  the  expiration  of  90  days  from 
the  date  of  the  accident  and  refuses  to  accept  it,  and  also  refuses  to  procure 
adequate  treatment  elsewhere,  his  right  to  compensation  under  section  16  (e) 
of  the  Compensation  Act  is  lost  as  to  any  aggravation  of  his  disability  which 
may  occur  by  reason  of  such  refusal  to  accept  proper  treatment.  Parini  v. 
Selby  Smelting  &  Lead  Co.,  2  Cal.  I.  A.  C.  Dec.  192. 

75  Taylor  v.  Spreckels,  2  Cal.  I.  A,  C.  Dec.  62. 

7  6  Where  the  employe  has  before  the  filing  of  his  application,  or  before  the 
hearing  thereof,  in  ignorance  of  the  requirements  of  the  law,  refused  a  proper 
offer  of  an  operation,  and  such  operation  is  still  advisable,  the  Commission 
may  require  the  employer  or  his  insurance  carrier  to  renew  such  offer  at  the 
time  that  the  award  is  made,  such  offer  to  be  in  accordance  with  the  usual 
conditions  as  to  prospective  operations.  McNamara  v.  United  States  Fidelity 
&  Guaranty,  1  Cal.  I.  A.  C.  Dec.  138.  Where  an  injured  employe  is  tendered 
an  operation  at  the  expense  of  his  employer's  insurance  carrier,  and  refuses 
such  operation  upon  the  ground  that  his  own  physician  has  advised  him  that 
such  operation  would  be  futile,  and  it  is  subsequently  determined  by  the 
Commission,  upon  the  advice  of  medical  experts  appointed  by  it,  that  such 
operation  would  be  advantageous  and  that  its  risk  would  be  inconsiderable 
in  view  of  the  seriousness  of  the  operation,  such  employg  has  not  lost  his 
right  to  compensation  up  to  the  date  of  the  award  of  the  Commission,  upon 
the  ground  that  the  continuation  of  his  disability  was  caused  by  his  unrea- 
sonable refusal  to  submit  to  medical  or  surgical  treatment.  Aylward  v. 
Oceanic  Steamship  Co.,  2  Cal.  I.  A.  C.  Dec.  95. 


133  workmen's  compensation  536 


ARTICLE  IV 

OCCUPATIONAL  DISEASES 

Section 

13S.     Occupational    diseases. 
139.  Massachusetts. 

§  138.     Occupational  diseases 

■  The  legislative  tendency  abroad  and  in  this  country  has  been 
to  deal  with  industrial  accidents  distinct  from  occupational  dis- 
eases. None  of  the  Acts  in  this  country  expressly  include  disease. 
Of  the  ten  Acts  which  on  their  face  do  not  exclude  occupational  dis- 
eases, three,  the  Acts  of  Ohio  and  Michigan  and  Connecticut,  have 
been  construed  by  the  courts  to  exclude  them,'^''  and  two,  the  Acts 

7  7  In  1912  the  constitutional  convention  submitted  to  the  people  of  the  state 
of  Ohio  what  is  now  section  .35  of  article  2,  which  provided  that:  "For  the 
purpose  of  providing  compensation  to  workmen  and  their  dependents,  for 
death,  injuries  or  occupational  diseases,  occasioned  in  the  course  of  such  work- 
men's employment,  laws  may  be  passed,"  etc.  This  proposition  was  ratified 
by  the  people  by  a  most  decisive  majority  and  gave  the  authority  necessary 
to  the  Legislature  for  the  enactment  of  the  present  Act.  In  1913  the  existing 
compulsory  Act  was  passed.  Act  March  14,  1913  (103  Ohio  Laws,  p.  72).  It 
is  to  be  observed  that  the  constitutional  amendment  differentiates  between 
injuries  and  occupational  disease.  It  clearly  recognizes  three  distinct  classes 
for  which  provision  may  be  made :  (1)  Injuries  resulting  in  death ;  (2)  non- 
fatal injuries ;  and  (3)  occupational  diseases — and  all  are  to  be  limited  to 
such  as  might  be  occasioned  in  due  course  of  employment.  In  Industrial 
Commission  of  Ohio  v.  Brown,  92  Ohio  St.  309,  110  N.  E.  744,  L.  R.  A.  1916B, 
1277,  the  court  (opinion  by  Nichols,  C.  J.)  said:  "It  is  no  difficult  matter  to 
bring  within  the  purview  of  the  words  'personal  injuries  sustained  in  the 
course  of  employment'  occupational  diseases  incurred  in  the  course  of  em- 
ployment. It  can  be  further  conceded  that,  had  the  Legislature,  in  enacting 
either  the  original  or  the  present  law,  desired  to  make  plain  its  intention  to 
exclude  occupational  disease  from  participation  in  the  fund,  the  exclusion 
could  readily  have  been  made  by  adding  to  the  words  'personal  injuries,'  the 
qualifying  phrase  'by  accident.'  As  against  all  this  the  court  feels  impelled 
to  follow  both  the  executive  and  the  legislative  construction  of  the  word  'in- 
jury' as  employed  in  this  Act,  and  to  limit  recovery  of  compensation  to  such 
as  may  have  suffered  injury  otherwise  than  through  disease.     The  victims 


537  CIRCUMSTANCES   UNDER   WHICH    COMPENSATION   DUE  §   138 

of  California  and  Iowa,  have  received  a  similar  administrative  con- 
struction.^^    On  the  other  hand,  the  Massachusetts  Act  has  been 

of  modern  industrialism  springing  from  disease  incident  thereto  are  only  less 
numerous  tban  those  arising  from  pure  accident,  and  no  sound  policy  can 
be  suggested  that  should  protect  the  one  class  and  ignore  the  other,  especially 
when  the  compensation  system  becomes  firmly  established.  Until  this  is  done 
the  court  will  continue  to  construe  the  law  as  it  was  obviously  intended  by 
the  Legislature  that  it  should  be  construed." 

In  Adams  v.  Acme  White  Lead  &  Color  Works,  182  Mich.  157,  148  N.  W. 
4S5,  L.  R.  A.  1916B,  283,  the  court  (opinion  by  Judge  Stone)  says:  "We  are 
of  the  opinion  that  in  the  Michigan  Act  it  was  not  the  intention  of  the  Legis- 
lature to  provide  compensation  for  industrial  or  occupational  diseases,  but  for 
injuries  arising  from  accidents,  alone.  If  it  were  to  be  held  that  the  Act  was 
intended  to  apply  to  such  diseases,  it  would,  in  so  far  as  it  does,  be  unconsti- 
tutional and  in  violation  of  section  21  of  article  5  of  the  Constitution  of  this 
state,  which  provides  that:  'No  law  shall  embrace  more  than  one  object, 
which  shall  be  expressed  in  its  title.'  That  the  Act,  if  it  were  held  to  apply 
to  and  cover  occupational  diseases,  is  unconstitutional  in  so  far  as  it  does 
so,  is  shown  by  the  fact  that  the  body  of  the  Act  would  then  have  a  greater 
breadth  than  is  indicated  in  the  title.  A  careful  analysis  of  the  title  of  the 
Act  shows  that  the  controlling  words  are,  'providing  compensation  for  acci- 
dental injury  to  or  death  of  employes.'  No  compensation  is  contemplated, 
except  for  such  injuries.  The  prefatory  words  are  generally  dependent  upon 
the  above-quoted  clause.  The  only  compensation  provided  is  for  'accidental 
injury  to  or  death  of  employes,'  and  the  last  clause  of  the  title  restricts  the 
right  to  compensation  or  damages  in  such  cases  'to  such  as  are  provided  by 
this  Act.'  The  Massachusetts  decisions  having  no  bearing  upon  this  branch  of 
the  case  for  two  reasons:  One  is  that  the  titles  of  the  respective  Acts  dif- 
fer materially;  and  the  other  reason  is  that  the  Massachusetts  Act  has  no 
such  constitutional  provisions  as  ours  above  quoted.  *  *  *  Manifestly, 
the  terms  'personal  injury'  and  'personal  injuries'  *  *  *  refer  to  common- 
law  conditions  and  liabilities,  and  do  not  refer  to  and  include  occupational 
diseases,  because  an  employ^  had  no  right  of  action  for  injury  or  death  due 
to  occupational  diseases  at  common  law,  but,  generally  speaking,  only  acci- 
dents, or  rather  accidental  injuries,  gave  a  right  of  action.  We  are  not  able 
to  find  a  single  case  where  an  emploj^'e  has  recovered  compensation  .for  an 
occupational  disease  at  common  law.  Certainly  it  can  be  said  that  in  this 
state  no  employer  has  ever  been  held  liable  to  the  employ^  for  injury  from 

78  1  Cal.  I.  A.  C.  Dec.  No.  5,  p.  11.  The  words  "injury"  and  "personal  in- 
jury," as  used  in  the  Iowa  Act,  do  not  include  a  disease  except  as  it  shall 
result  from  the  injury.  (Code  Supp.  1913,  §  2477ml6).  Op.  Sp.  Counsel  to 
Iowa  Indus.  Com.  (1915),  p.  26. 


§  138  workmen's  compensation  538 

construed  to  include  occupational  diseases,  and  the  original  fed- 
eral Act  has  received  a  similar  construction,  as  will  be  hereinafter 

an  occupational  disease,  but  only  for  injuries  caused  by  negligence.  It  seems 
to  us  that  the  whole  scheme  of  this  Act  negatives  any  liability  of  the  em- 
ployer for  injury  resulting  from  an  occupational  disease." 

The  provision  authorizing  compensation  for  "personal  injury  arising  out 
of  and  in  the  course  of  the  employment"  does  not  authorize  compensation 
for  occupational  diseases.  Miller  v.  American  Steel  &  Wire  Co.,  90  Conn.  349, 
97  Atl.  345. 

In  an  English  case,  Brinton's,  Lim.,  v.  Turvey,  74  L.  J.  K.  B.  474,  it  was 
decided  that  lead  poisoning  could  not  be  described  as  an  "accident"  in  the 
popular  and  ordinary  use  of  that  word,  so  as  to  entitle  the  applicant  to  com- 
pensation for  personal  injurj'  by  accident  arising  out  of,  and  in  the  course  of, 
his  employment,  within  the  meaning  of  section  1  of  the  Workmen's  Compen- 
sation Act  of  1897.  The  court  in  this  case  reasoned  that,  under  the  Act,  a 
date  must  be  fixed  as  that  on  which  the  injury  by  accident  occurred,  and  it 
was  said :  "It  has  been  suggested  that  there  was  a  series  of  accidents  by  the 
continuous  absorption  of  lead  by  one  or  the  other  of  the  three  processes 
named ;  but  this  suggestion  does  not  meet  the  difficulty  which  arises  from 
the  provisions  of  the  Act  as  to  notice  of  the  particular  date  of  the  accident 
or  injury."  As  a  result  of  this  case,  it  was  found  necessary  to  change  the 
Act,  if  cases  like  this  were  to  be  included;  so  in  190G,  less  than  a  year  later, 
the  Act  of  6  Edw.  VIII,  c.  58,  was  passed,  entitled,  "An  act  to  amend  the  law 
with  respect  to  compensation  for  workmen  for  injuries  suffered  in  the  course 
of  their  employment."  The  body  of  the  Act  again  provides  compensation  for 
"personal  injury  by  accident,"  but  it  also  (section  8)  provides  that:  "Where 
the  disease  is  due  to  the  nature  of  the  employment  *  *  *  he  or  his  de- 
pendents shall  be  entitled  to  compensation  under  this  Act  as  if  the  disease 
*  *  *  were  a  personal  injury  by  accident,  arising  out  of  and  in  the  course 
of  employment  if  it  be  one  of  the  diseases  in  schedule  3  of  the  Act."  In  that 
schedule  "lead  poisoning"  and  its  sequels  are  therein  scheduled.  As  said  in 
Encyclopedia  of  Laws  of  England,  vol.  5,  p.  227 :  "The  extension  by  this  Act 
of  the  principle  of  workmen's  compensation  to  industrial  diseases  is  a  new 
departure.  Disease,  if  contracted  industrially,  is  not  an  accident  in  the  ordi- 
nary acceptance  of  the  terms."  It  was  also  said  of  the  Act  that  a  new  phase 
in  workmen's  compensation — compensation  for  disease  arising  out  of  em- 
ployment— was  a  new  feature  in  this  type  of  legislation.  The  language  of 
the  Act  should  be  particularly  noted.  It  does  not  attempt  to  declare  an  in- 
dustrial disease  an  "accident,"  but  gives  compensation  therefor  "as  if  the 
disease  *  *  *  were  a  personal  injury  by  accident."  Not  before,  but  since, 
the  passage  of  this  amendment  to  the  English  Act,  the  English  courts  have 
sustained  the  rights  of  recovery  in  cases  of  lead  poisoning. 


539  CIRCUMSTANCES   UNDER   WHICH   COMPENSATION   DUE  §   138 

noticed.^^  Among  those  states  which  may  be  classed  as  doubtful, 
the  preponderance  of  opinion,  so  far  as  expressed,  seems  to  be 
against  importing  occupational  diseases  into  Workmen's  Compen- 
sation Acts  by  judicial  construction.^"  A  disease  contracted  in  the 
course  of  employment  is  not  a  personal  injury  by  accident,  unless 
it  arises  from  an  event  capable  of  being  identified  with  respect  to 
time,  place,  and  circumstances."  It  follows  that,  where  an  "acci- 
dent" is  made  essential  either  in  the  body  or  by  reference  to  the 
title  of  an  Act,*^  to  the  right  to  recover  compensation,  and  no  ex- 
ception is  made  in  respect  to  diseases  as  in  the  present  English 
Act,  there  can  be  no  recovery  for  diseases  contracted  by  gradual 
process,  commonly  known  as  industrial  or  occupational  diseases/^ 

7  9  Miller  v.  American  Steel  &  Wire  Co.,  90  Conn.  349,  97  Atl.  345. 
sold. 

81  Liondale  Bleach  Dye  &  Paint  Works  v.  Riker,  85  N.  J.  Law,  426,  89  Atl. 
929;  Adams  v.  Acme  WMte  Lead  &  Color  Wks.,  182  Mich.  157,  148  N.  W. 
485,  L.  R.  A.  1916A,  283. 

Where  a  workman,  whose  employment  necessitated  the  handling  of  white 
and  red  lead,  gradually  accumulated  lead  in  his  system,  with  the  result  that 
he  suffered  from  lead  poisoning,  which  produced  partial  paralysis  and  inca- 
pacity for  work,  he  was  held  not  to  have  been  injured  by  accident;  the 
reason  seeming  to  be  because  it  was  not  possible  to  indicate  a  time  at  which 
there  was  an  accident  which  caused  the  injury.  Steel  v.  Cammell,  Laird  & 
Co.,  Ltd.  [1909]  2  K.  B.  232. 

The  disability  resulting  from  the  inhalation  of  cyanide  fumes  was  not 
caused  by  a  sudden  occurrence,  but  by  a  gradual  process,  and  was  an  occupa- 
tional disease,  and  not  an  accident.  Hindman  v.  Acme  Universal  Joint  Mfg. 
Co.,  Mich.  Wk.  Comp.  Cases  (1916),  56. 

82  Made  essential  by  title.  Adams  v.  Acme  White  Lead  &  Color  Wks.,  182 
Mich.  157,  148  N.  W.  485,  L.  R.  A.  1916A,  283. 

8sAn  occupational  disease  is  not  an  industrial  accident,  and  a  disability 
resulting  therefrom,  although  it  may  appear  suddenly,  is  not  proximately 
caused  by  an  accident,  and  is  therefore  not  compensable.  Johnson  v.  Bauer 
Pottery  Co.,  1  Cal.  I.  A.  C.  Dec.  72.  While  most  of  the  so-called  occupational 
diseases  meet  all  of  the  requirements  for  compensation  as  industrial  acci- 
dents, and  in  several  countries  and  states  no  distinction  is  drawn  between  the 
two  in  Workmen's  Compensation  Acts,  at  the  time  of  the  adoption  of  the 
present  California  statute  the  Legislature  did  not  include  under  "industrial 


§  138  workmen's  compensation  540 

such  as  lead  poisoning  among  painters,^*  ptomaine  poisoning,  ty- 
phoid fever,   or   enteritis   contracted   from   long  continuous   work 

accidents"  the  well  known  and  generally  recognized  list  of  occupational  diseas- 
es, such  as  lead  poisoning,  tuberculosis,  etc.,  and  the  Commission  will  not  ex- 
tend its  jurisdiction  to  cover  them.  De  Witt  v.  Jacoby  Bros.,  1  Cal.  I.  A.  C. 
Dec.  170. 

8  4  Century  Dictionary  and  Cyclopedia  defines  an  "occupational  disease"  as 
"a  disease  arising  from  causes  incident  to  the  patient's  occupation,  as  lead 
poisoning  among  painters."  The  court  held  in  Adams  v.  Acme  White  Lead  & 
Color  Wks.,  182  Mich.  157,  148  N.  W.  485,  L.  R  A.  1916A,  283,  that  lead  poi- 
soning was  not  compensable,  saying  in  an  opinion  by  Judge  Stone :  "In  the 
instant  case  the  undisputed  medical  evidence  shows  that  lead  poisoning  does 
not  arise  suddenly,  but  comes  only  after  long  exposure.  'It  is  a  matter  of 
weeks  or  months  or  years.'  It  is  brought  about  by  inhalation,  or  by  the  lead 
coming  into  the  system  with  food  through  the  alimentary  canal,  or  by  absorp- 
tion through  the  skin.  In  any  case  it  Is  not  the  result  of  one  contact  or  a 
single  event.  'In  occupational  diseases  it  is  drop  by  drop,  it  is  little  by  little, 
day  after  day,  for  weeks  and  months,  and  finally  enough  is  accumulated  to 
produce  symptoms.'  It  also  appears  that  lead  poisoning  is  always  prevalent 
in  the  industries  in  which  lead  is  used,  and  a  certain  percentage  of  the  work- 
men exposed  to  it  become  afflicted  with  the  disease.  Elaborate  precautions 
are  taken  against  it  in  the  way  of  instructions  to  the  men,  masks  to  protect 
respiratory  organs,  etc.  Whether  the  workman  will  contract  it  or  not  will 
depend  upon  the  physical  condition,  care,  and  peculiarity  of  the  individual, 
and  the  amount  of  time  it  will  take  to  produce  ill  effects  or  death  also  va- 
ries." 

Where  there  had  been  a  gradual  accumulation  over  a  considerable  period 
of  time  of  poison  by  working  in  or  about  a  room  where  molten  lead,  fumes 
resulting  from  molten  lead,  and  small  particles  of  lead  and  its  composites 
were  present  on  the  floor  or  throughout  the  room,  and  it  was  impossible  to 
fix  any  daj',  or  probably  even  upon  any  week  or  month,  at  or  during  which 
the  injury  was  sustained,  the  workman  being  prostrated  by  the  gradual  creep- 
ing on  of  the  disease  popularly  known  as  lead  poisoning,  it  was  held  that 
compensation  for  incapacity  or  death  caused  by  such  a  disease  could  not  be 
had.     Miller  v.  American  Steel  &  Wire  Co.,  90  Conn.  349,  97  Atl.  345. 

"Personal  injuries  sustained  in  the  course  of  employment,"  within  Work- 
men's Compensation  Act  June  15,  1911  (102  Ohio  Laws,  p.  524),  authorizing 
compensation  for  such  injuries,  do  not  include  lead  poisoning  contracted  in 
the  course  of  employment.  Industrial  Commission  of  Ohio  v.  Brown,  92  Ohio 
St.  309,  110  N.  E.  744,  L.  R.  A.  1916B,  1277.  The  condition  known  as  lead 
poisoning  is  an  "occupational  disease."  In  re  Wm.  Peters,  vol.  1,  No.  7,  BuL 
Ohio  Indus.  Com.  p.  25. 


541  CIRCUMSTANCES  UNDER  WHICH   COMPENSATION  DUB  §   138 

about  a  sewer  or  drain/^  and  other  diseases  or  ailments  contracted 
under  similar  circumstances.^® 

85  Ptomaine  poisoning,  contracted  by  a  workman  while  working  on  drains, 
was  not  personal  injury  by  accident.  Eke  v.  Hart-Dyke  (1910)  3  B.  W.  C. 
C.  482,  C.  A.  A  disease  (enteritis)  contracted  by  inhaling  sewer  gas  was  not 
a  personal  injury  by  accident.  Broderick  v.  London  County  Council  (1909)  1 
B.  W.  C.  C.  219,  C.  A.  Where  a  workman  had  been  engaged  for  several  years 
in  removing  sewage,  and  contracted  typhoid  fever  and  died,  there  was  no 
evidence  of  accident.  Finlay  v.  Tullamore  Guardians  (1914)  7  B.  W.  C.  C. 
973,  C.  A. 

86  Where  a  workman,  after  ten  days'  service  in  a  bleachery,  was  affected 
with  a  rash,  which  was  pronounced  to  be  a  condition  of  eczema,  caused  by 
contact  with  the  dampened  goods,  he  was  not  injured  by  accident.  Liondale 
Bleach  Dye  &  Paint  Works  v.  Biker,  85  N.  J.  Law,  426,  89  Atl.  929. 

Whether  carbon  monoxide  poisoning  is  an  accidental  injury  or  an  occu- 
pational disease  depends  on  whether  the  attack  is  sudden  or  gradual.  Such 
poisoning  may  occur  in  one  of  two  ways:  (1)  By  suffocation;  if  an  individ- 
ual who  has  been  thus  overcome  is  removed  early  enough  to  pure  air,  the 
carbon  monoxide  will  be  eliminated  in  the  course  of  eight  to  twelve  hours, 
and  the  patient  will  be  fully  recovered.  (2)  Where  there  had  been  no  suf- 
focation, but  the  oxygen  has  been  withheld  for  a  long  enough  period  from 
the  blood,  due  to  carbon  monoxide,  degeneration  will  be  produced  in  the 
cells  of  the  nervous  system,  which  may  have  been  exposed  to  lack  of  oxygen. 
In  this  event  there  can  be  no  regeneration  of  the  cells,  and  the  function  of 
the  nerve  tissue  is  either  entirely  lost  or  suffers  permanent  disorder.  If  it 
should  be  shown  that  the  applicant  had  suffered  over  a  long  period  of  time 
from  exposure  to  carbon  monoxide  gas,  producing  a  slow  and  insidious  de- 
generation of  his  nervous  system  over  a  long  period  of  time,  the  Industrial 
Accident  Commission  would  hold  his  malady  to  be  an  occupational  disease, 
and  not  covered  by  the  Workmen's  Compensation,  Insurance  and  Safety  Act 
in  its  present  form.     Burgess  v.  Star,- 2  Cal.  I.  A.  C.  Dec.  2G9. 

In  Cochran  v.  Fenton,  1  Conn,  Comp.  Dec.  690,  where  the  injury  consisted 
of  eye  strain  caused  by  the  continuous  use  of  claimant's  eyes,  required  by 
her  employment,  not  attributable  to  anything  which  happened  at  any  def- 
inite time,  but  being  the  gradual  result  of  the  use  of  her  eyes,  extending 
over  a  period  of  several  weeks,  it  was  held  no  compensation  could  be  awarded. 

While  a  porter  in  a  fever  hospital  was  cleaning  out  the  mortuary,  he  felt 
sick  and  dizzy.  He  became  worse,  and  finally  developed  a  case  of  scarlet 
fever;  but  it  was  held  that  there  was  no  accident.  Martin  v.  Manchester 
Corporation  (1912)  5  B.  W.  C.  C.  259,  C.  A.  It  was  not  a  personal  injury  by 
accident,  where  a  canvasser  and  collector,  who  was  hurrying  in  an  effort  to 
get  his  work  done  in  a  certain  time,  developed  pleurisy  from  becoming  over- 


§  138  workmen's  compensation  542 

The  Solicitor  of  the  Department  of  Labor,  altering  his  previous 
rulings  on  the  subject,  held  that  the  federal  act  covers  lead  poison- 
ing an  occupational  disease.^''  The  Attorney  General,  in  a  case 
wherein  the  employe  contracted  a  severe  cold  in  the  course  of  his 
employment,  resulting  in  pneumonia,  decided  that  the  employe  was 
not  entitled  to  compensation,  and  said  in  the  course  of  his  opinion 
that  "the  word  'injury'  however,  as  used  in  the  statute,  is  in  no 
sense  suggestive  of  disease,  nor  has  it  ordinarily  any  such  significa- 
tion." «« 

lieaterl  and  then  chillin5r,  and  was  incapacitated.  McMillan  v.  Singer  Sew- 
ing Machine  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  345,  Ct.  of  Sess.  A  hairdresser's 
assistant,  whose  hands  began  to  smart  on  a  certain  date,  contracted  der- 
matitis, which  he  alleged  was  caused  by  his  using  a  dry  shampoo,  but  there 
was  held  to  be  no  evidence  of  accident.  Petschelt  v.  Preis  (1915)  8  B.  W.  C.  C. 
44,  C.  A.  It  was  not  a  personal  injury  by  accident  where  a  workman,  who 
was  employed  at  dipping  rings  in  a  chemical,  gradually  contracted  eczema 
on  his  hands  (Evans  v.  Dood  [1912]  5  B.  W.  C.  C.  305,  C.  A.);  where  a  sec- 
ond ofBcer,  who  superintended  the  loading  of  his  ship  for  several  days  for 
17  hours  a  day,  dropped  dead  6  days  later  from  heart  failure  being  brought 
on  by  the  continuous  strain  (Black  v.  New  Zealand  Shipping  Co.,  Ltd.  [1913] 
G  B.  W.  C.  C.  720,  C.  A.) ;  where  paralysis  was  gradually  contracted  through 
riding  a  carrier  tricycle  (Walker  v.  Hockney  Bro.  [1910]  2  B.  W.  C.  C.  20, 
C.  A.) ;  where  a  miner,  who  was  engaged  in  heavy  work  and  felt  a  sudden 
pain  in  his  chest,  was  found  to  be  suffering  from  cardiac  breakdown,  which 
was  caused,  not  by  a  sudden  strain,  but  by  overexertion  for  a  period  of  sev- 
eral days  (Coe  v,  Fife  Coal  Co.,  Ltd.  [1910]  2  B.  W.  C.  O.  8,  Ct.  of  Sess.) ; 
where  a  workman  contracted  heart  disease  because  of  the  continuous  strain 
of  work  which  he  was  not  physically  able  to  do  (Baton  v.  Dixon,  Ltd.  [1913] 
G  B.  W.  C.  C.  882,  Ct.  of  Sess.) ;  where  "beat  hand"  and  "beat  knee,"  con- 
tracted by  miners,  were  caused  by  the  gradual  process  of  continued  friction 
(Marchall  v.  East  Holywell  Coal  Co.,  Gorley  v.  Backworth  Collieries  [1905] 
7  W.  C.  C.  19  [Act  of  1S97])  ;  or  where  a  workman's  boot  shrank  and  became 
so  tight  as  to  injure  one  of  his  toes  (White  v.  Sheepwash  [1910]  3  B.  W.  C. 
C.  382,  C.  A.). 

8  7  Claimant  was  a  painter  and  in  the  course  of  his  employment  contracted 
lead  poisoning.  Distinguishing  this  disease  from  pneumonia,  malaria,  ty- 
phoid, or  the  like,  it  was  held  that  the  incapacity  was  due  to  an  injury  in 
the  course  of  employment.  (This  opinion  alters  the  previous  ruling  in  the 
John  Treiman  and  C.  L.  Schroeder  Cases  on  this  subject.)  In  re  Jule,  Op. 
Sol.  Dept.  of  L.  261. 

8  8  In  re  Sheeran,  28  Op.  Atty.  Gen.  254. 


513  CIRCUMSTANCES  UNDER   WHICH   COMPENSATION   DUE  §    139 

§  139.     Massachusetts 

An  "accident"  not  being  essential  under  the  Massachusetts  Act, 
an  occupational  disease  is  compensable  as  an  "injury,"  though  not 
expressly  made  so  by  statute;  ^^   the  date  of  injury  in  such  case  be- 

8  9  Johnson  v.  London  Guarantee  &  Accident  Co.,  Ltd.,  217  Mass.  388,  104 
N.  E.  735. 

Afflicted  employes  held  entitled  to  compensation:  An  employe  incapacitat- 
ed by  lead  poisoning.  Johnson  v.  London  Guarantee  &  Accident  Co.,  Ltd.,  2 
Mass.  Wk.  Comp.  Cases,  108  (decision  of  Cora,  of  Arb.,  affirmed  by  Indus.  Ace. 
Bd.,  also  by  Sup.  Jud.  Court,  217  Mass.  388,  104  N.  E.  735).  An  employe  who 
received  a  personal  injury  by  reason  of  his  occupation  as  a  cigar  maker, 
which  caused  a  condition  of  neurosis  in  his  hands  and  arms,  with  consequent 
inability  to  use  them  in  the  making  of  cigars,  this  condition  being  brought 
about  by  the  unusual  degree  of  strain  upon  certain  groups  of  muscles  for  a 
long  period  of  time,  and  by  the  rapidity  with  which  he  performed  his  work. 
Lee  V.  Employers'  Liability  Assur.  Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  753 
(decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.).  An  employ^  injured 
by  the  extreme  pressure  from  the  shears  which  he  used  in  cutting  a  coil  of 
wire,  a  septic  hand  and  palmar  abscess  resulting  without  visible  external 
wound.  Erickson  v.  Mass.  Employes  Insur.  Ass'n,  2  Mass.  Wk.  Comp.  Cases. 
149  (decision  of  Com.  of  Ai-b.).  A  stone  grinder,  injured  by  inhaling  small 
particles  of  stone  and  dust,  by  reason  of  which  he  contracted  fibroid  tuber- 
culosis, usually  spoken  of  as  "stone  grinder's  phthisis."  Kalanquin  v.  Trav- 
elers' Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  748  (decision  of  Com.  of  Arb.). 
An  employe  incapacitated  for  work  by  a  personal  injury  due  to  infection. 
Vitale  V.  Fidelity  &  Deposit  Co.  of  Md.,  2  Mass.  Wk.  Comp.  Cases,  425  (de- 
cision of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.).  An  employ^  injured  by 
the  falling  of  a  door,  and  incapacitated  for  work  subsequently  by  an  attack 
of  chorea  minor  (St.  Vitus'  dance).  Oristoforo  v.  Employers'  Liability  Assur. 
Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  364  (decision  of  Com.  of  Arb.).  An 
employe  injured  by  the  blistering  of  his  hand  in  using  a  wheelbarrow,  the 
wound  becoming  infected  and  two  operations  being  performed,  in  conse- 
quence of  which  the  previously  impaired  nervous  state  of  the  employe  was 
accelerated  to  the  point  of  insanity,  the  connection  between  the  personal  injury 
and  the  insanity  being  unbroken.  Whalen  v.  U.  S.  Fidelity  &  Guaranty  Co., 
2  Mass.  Wk.  Comp.  Cases,  318  (decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace. 
Bd.).  An  employe  injured  by  a  blow  from  a  12-pound  sledgehammer  which 
he  was  using,  the  sledgehammer  missing  the  drill  at  which  it  was  aimed  and 
striking  him  with  considerable  force  on  the  left  ankle,  thus  ligliting  up  an 
inflammatory  condition  which  has  been  described  as  a  mild  chronic  osteomye- 
litis and  afterwards  necessitating  amputation  of  the  leg.  Gariella  v.  Amer- 
ican Mutual  Liability  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  237  (decision  of 


§  139  workmen's  compensation  544 

ing  the  date  when  the  workman  becomes  sick  and  unable  to  per- 
form labor.^°  It  is  not  essential  to  compensability  that  there  be 
any  visible  external  wound. ®^ 

Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.).  An  employe  unable  to  continue 
lier  work  as  a  wire  drawer,  by  reason  of  an  attack  of  irritative  eczema,  tbe 
result  of  the  use  of  a  chemical  in  connection  with  her  occupation.  Dolan 
V.  Mass.  Employes'  Insur.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  259  (decision  of 
Com.  of  Arb.).  An  employ§  so  injured  as  to  cause  dislocation  of  the  coecum, 
general  adhesions  in  the  abdomen,  and  constipation,  resulting  in  traumatic 
peritonitis,  which  condition  necessitated  an  operation  for  the  removal  of  the 
appendix.  Gregg  v.  Frankfort  General  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases, 
581  (decision  of  Com.  of  Arb.). 

0  0  Where  a  lead  grinder  became  incapacitated  from  lead  poisoning,  the  date 
of  injury  was  when  he  became  sick  and  unable  to  perform  labor,  though  the 
previous  absorption  of  lead  into  his  system  for  more  than  a  year  produced 
the  conditions  which  finally  terminated  in  the  injury.  (St.  1911,  c.  751,  as 
amended  by  St.  1912,  c.  571)  Johnson  v.  London  Guarantee  &  Accident  Co., 
Ltd.,  217  Mass.  3S8,  104  N.  E.  735.  This  case  is  supported  by  Sheerin  v.  F. 
&  J.  Clayton  Co.,  Ltd.,  3  B.  W.  C.  C.  418 ;  Ismay  Imrie  &  Co.  v.  Williamson, 
1  B.  W.  C.  C.  232;  Martin  v.  Manchester  Corporation,  5  B.  W.  C.  C.  259 
(1912) ;    Alloa  Coal  Co.,  Ltd.,  v.  Drylie,  6  B.  W,  C.  C.  398  (1913). 

91  Erickson  v.  Mass.  Employes'  Insur.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  149 
(Dec.  of  Com.  of  Arb.). 


545  DEFENSES  TO  COMPENSATION  CLAIMS  §  140 

CHAPTER  VI 

DEFENSES  TO  COMPENSATION  CLAIMS 

Section 

140.  Serious  and  willful  misconduct — Purposely  self-inflicted  injury. 

141.  Disobedience — Violation  of  rules. 

142.  Drunkenness. 

143.  Burden  of  proof — Question  of  fact. 

144.  Estoppel  and  res  judicata. 

145.  Negligence,  contributory  negligence,  and  assumption  of  risk. 

146.  Defenses  under  federal  Act. 

§  140.     Serious  and  willful  misconduct — Purposely  self-inflicted  in- 
jury 

While  even  willful  negligence  on  the  part  of  the  workman  con- 
stitutes no  defense  under  the  compensatory  provisions  of  some 
Workmen's  Compensation  Acts/  the  defense  that  the  employe  has 
been  guilty  of  intentional,  or  serious,  and  willful  misconduct,  is 
saved  in  many  of  the  Acts  by  an  express  provision  (qualified  in  the 
English  Act  by  the  words  "unless  it  results  in  serious  and  per- 
manent disability  or  death")  ;  ^  but,  for  such  misconduct  to  be 
available  as  a  defense,  the  injury  must  be  attributable  to  it,^  and 

1  West  Jersey  Trust  Co.  v.  Philadelphia  &  R.  Ry.  Co.,  88  N.  J.  Law,  102, 
95  Atl.  753 ;   Taylor  v.  Seabrook,  87  N.  J.  Law,  407,  94  Atl.  399. 

-  The  injury  amounted  to  serious  and  permanent  disal)lement,  where  a  boy 
lost  the  top  joints  of  the  first  and  third  fingers  while  he  was  cleaning  a  ma- 
chine in  motion,  contrary  to  orders.  Hopwood  v.  Olive  &  Partington,  Ltd. 
(1910)  3  B.  W.  C.  C.  357,  C.  A.  Also  where  a  machinist  in  the  joinery  trade 
suffered  an  accident  causing  him  to  lose  the  top  joint  of  the  middle  finger  of 
his  right  hand.     Brewer  v.  Smith  (1913)  6  B.  W.  C.  C  651,  C.  A. 

If  the  deceased  met  with  his  injury  by  reason  of  his  serious  and  willful 
misconduct,  no  compensation  can  be  awarded.  In  re  Von  Ette,  223  Mass.  56, 
111  N.  E.  697. 

3  "The  first  thing  required  is  that  the  employer  must  prove  that  the 
Injury  was  'attributable'  to  the  misconduct ;  the  second  is  that  he  must  prove 
the  misconduct  to  have  been  'serious  and  willful,'  in  the  sense  of  being  far  be- 

HoN.CoMP. — 35 


§  140  workmen's  compensation  546 

the  misconduct  must  have  been  within  the  scope  of  the  employ- 
ment.*    Serious  and  willful  misconduct  cannot  assist  in  bringing 

yond  mere  negligence,  and  more  than  bare  misconduct."  Lord  Stormontli- 
Darling,  in  Wallace  v.  Glenboig  Union  Fireclay  Co.,  Ltd.  (1907)  S.  C.  9G7 
(Act  of  1897).  Where  there  was  a  statutory  provision  forbidding  miners  to 
carry  a  naked  light  in  a  place  where  inflammable  gas  was  likely  to  be,  and  an 
oversman,  who,  though  carrying  a  naked  light,  remained  in  a  safe  place, 
was  killed  by  an  explosion  which  resulted  from  another  man,  who  was  with 
him,  wandering  into  a  dangerous  place,  the  accident  was  not  attributable  to 
serious  and  willful  misconduct.  Id.  Where  a  miner  was  killed  by  a  stone 
which  fell  from  the  roof  of  the  mine  upon  him,  while  he  was  riding  on  a 
loaded  hutch,  which  action  was  contrary  to  statutory  regulation,  the  accident 
was  not  attributable  to  the  misconduct.  Glasgow  Coal  Co.,  Ltd.,  v.  Sneddon 
(1905)  7  F.  485,  Ct.  of  Sess.  (Act  of  1897).  Where  a  miner,  after  doing  some 
"holing,"  by  neglecting  to  put  in  the  supports,  left  a  mass  of  shale  over- 
hanging in  a  dangerous  position,  which  was  in  violation  of  a  statutory  regu- 
lation, and  later,  while  about  a  different  piece  of  work,  was  killed  by  its 
falling  down  upon  him,  the  accident  was  not  attributable  to  serious  and  will- 
ful misconduct.  Tennant  v.  Broxburn  Oil  Co.,  Ltd.  (1907)  S.  C  581,  Ct.  of 
Sess.  Where  a  workman  was  injured  when  a  lorry,  which  he  had  run  upon 
a  wrong  line  and  contrary  to  the  rules  of  the  railway  company,  collided  with 
a  special  train  of  which  no  warning  had  been  given,  the  accident  was  attrib- 
utable to  his  serious  and  willful  misconduct.  McCafferey  v.  Great  North- 
ern Ry.  Co.  (1902)  36  Ir.  L.  T.  27,  C  A. '  Where  a  miner  so  far  disregarded 
his  own  safety  as  to  attempt  to  cross  an  incline  upon  which  hutches  were  as- 
cending and  descending,  his  injury  was  the  result  of  serious  and  willful 
misconduct.  Condron  v.  Gavin  Paul  &  Sons,  Ltd.  (1904)  6  F.  29,  Ct.  of  Sess. 
(Act  of  1897). 

4  As  the  Michigan  Act  provides  compensation  only  for  such  injuries  as  are 
received  in  the  course  of  the  employment,  and  then  only  when  they  grow  out 
of  the  employment,  and  as  injuries  received  outside  the  employment  are  not 
within  the  provisions  of  the  act  at  all,  it  must  follow  that  the  "intentional  and 
willful  misconduct"  which  operates  to  debar  the  employ^  from  the  compen- 
sation which  he  might  otherwise  receive  refers  to  such  misconduct  within  the 
scope  of  his  employment.  If  the  injury  to  the  employg  was  not  received  "in 
the  course  of  his  employment,"  it  is  immaterial  whether  it  was  caused  by  his 
"intentional  and  willful  misconduct"  or  not.  BischofC  v.  American  Car  & 
Foundry  Co.  (Mich.)  157  N.  W.  34. 

Where  a  collier,  seeking  to  increase  the  amount  of  coal  to  his  credit,  cut 
coal  at  intervals  in  a  dangerous  place,  where  he  had  been  forbidden  to  work, 
and  was  killed  by  a  fall  of  coal,  the  question  of  whether  there  was  serious 
and  willful  misconduct  is  irrelevant,  because  the  accident  did  not  arise  out 


547  DEFENSES  TO  COMPENSATION  CLAIMS  §  140 

an  accident  within  the  words  "arising  out  of  and  in  the  course  of" 
the  employment.^ 

"Serious"  refers,  not  to  the  actual  consequences,  but  to  the  mis- 
conduct itself.®  Mere  misconduct  is  not  sufficient.  Willfulness  is 
the  essential  element,  and  must  be  established.'  The  word  "will- 
ful" imports  deliberate  misconduct,  not  merely  a  thoughtless  act 
on  the  spur  of  the  moment.*  It  means  more  than  mere  negligence, 
or  even  gross  or  culpable  negligence.  It  involves  conduct  which  is 
of  a  quasi  criminal  nature;  the  intentional  doing  of  something  ei- 
ther with  the  knowledge  that  it  will  result  in  serious  injury  or  with 

of  the  employment.  Weigliill  v.  South  Hetton  Coal  Co.,  Ltd.  (1911)  4  B.  W. 
C.  C.  141,  C.  A.  But  where  a  collier,  going  to  work  in  a  train  furnished  by 
his  employers,  went  out  onto  the  platform  before  the  train  had  stopped,  and, 
falling,  was  permanently  disabled,  riding  on  the  platform  of  the  trains  being 
expressly  forbidden,  the  accident  was  not  outside  the  scope  of  his  employment. 
Watkins  v.  Guest,  Keen  &  Nettlefolds,  Ltd.  (1912)  5  B.  W.  C.  C.  307,  C.  A. 
In  this  case  the  court  (opinion  by  Fletcher  Moulton,  L.  J.)  said :  "We  have  the 
difficulty  of  finding  out  a  line  between  something  that  takes  the  accident  en- 
tirely out  of  the  employment,  and  something  which  within  the  employment 
is  a  serious  and  willful  misconduct,  which  leads  to  the  accident.  It  is  a  dif- 
ficulty which  I  do  not  think  will  ever  be  solved  by  phrases.  I  think  in  each 
case  we  shall  have  to  draw  the  line,  and  I  think  that  that  line  ought  to  be 
drawn  generally  by  the  judge  of  first  instance."    Id. 

5  Price  V.  Tredgar  Iron  &  Coal  Co.  (1914)  7  B.  W.  C.  C.  3S7.  "Serious  and 
willful  misconduct  within  the  sphere  of  the  employment  does  not  prevent  his 
dependents — in  that  ease  it  was  death — from  claiming  compensation;  but 
willful  misconduct  outside  the  sphere  of  his  employment  does  not  bring  the 
accident  within  the  sphere  of  the  employment."  Cozens-Hardy,  in  Harding 
V.  Brynddu  Colliery  Co.,  4  B.  W.  C.  C.  271. 

6  Johnson  v.  Marshall,  Sons  &  Co.,  Ltd.  (1906)  8  W.  C.  C.  10,  H.  L.  (Act  of 
1897). 

T  Kraljlvich  v.  Yellow  Aster  Mining  &  Milling  Co.,  1  Cal.  I.  A.  C.  Dec.  554. 

8  Johnson  v.  Marshall,  Sons  &  Co.,  Ltd.  (1906)  8  W.  C.  C.  10,  H.  L.  (Act  of 
1897).  Where  an  employe  impulsively  and  without  reflection  attempts  to 
clear  sand  off  from  a  moving  belt  without  first  stopping  the  motor,  such  con- 
duct is  not  such  a  violation  of  general  rules  of  safety  as  to  constitute  will- 
ful misconduct.  Swank  v.  Chanslor-Canfield  Midway  Oil  Co.,  2  Cal.  I.  A.  C. 
Dec.  330. 


§  140  workmen's  compensation  548 

a  wanton  disregard  of  its  probable  consequences ;  ®   conduct  closely- 
resembling  the  wanton  or  reckless  misconduct  which  will  render 

9  (Code  Supp.  1913,  §  2477ml)  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915) 
p.  36.  An  employe  may  do  something  through  thoughtlessness  or  inattention, 
may  act  imprudently  or  even  negligently,  or  may  go  about  his  work  in  a  way 
contrary  to  the  rules  and  instructions  of  his  employer,  without  having  "a 
willful  intention  to  injure  himself."  Id. ;  St.  1911,  c.  751,  pt.  2,  §  2.  "Soi-ious 
and  willful  misconduct"  is  a  very  different  thing  from  negligence,  or  even  from 
gross  negligence.  In  re  Nickerson,  218  Mass.  158, 105  N.  E.  604,  Ann.  Cas.  1916A, 
790 ;  Johnson  v.  Marshall,  Sons  &  Co.,  [1906]  A.  C.  409.  "Serious  and  willful  mis- 
conduct" is  much  more  than  mere  negligence  (Great  Western  Power  Co.  v.  Pills- 
bury,  170  Cal.  ISO,  149  Pac.  35),  or  even  than  gross  or  culpable  negligence.  It  in- 
volves conduct  of  a  quasi  criminal  nature,  the  intentional  doing  of  something 
either  with  the  knowledge  that  it  is  likely  to  result  in  serious  injury,  or  with 
a  wanton  and  reckless  disregard  of  its  serious  consequences  (In  re  Burns, 
218  Mass.  8,  105  N.  E.  601,  Ann.  Cas.  1916A,  787 ;  Johnson  v.  Marshall,  Sons 
&  Co.,  [1906]  A.  C.  409,  411;  Lewis  v.  Great  Western  Ry.  Co.,  3  Q.  B.  D. 
195,  206,  213).  Compensation  is  awarded  without  regard  to  the  negligence 
of  the  employe,  except  where  the  injury  results  from  serious  and  willful  mis- 
conduct, in  Avhich  case  no  compensation  is  given.  In  re  Murphy  (Mass.)  113 
N.  E.  283.  Mere  negligence  or  carelessness  of  an  employe,  causing  his  death 
or  injury,  does  not  preclude  right  of  compensation  under  said  statute.  Ar- 
chibald V.  Ott  (W.  Va.)  87  S.  E.  791.  Death  benefits  are  to  be  awarded,  where 
otherwise  deserved,  "without  regard  to  negligence" ;  i.  e.,  negligence  of  any 
character.  Even  gross  negligence  does  not  constitute  willful  misconduct.  The 
term  "willful  misconduct,"  as  used  in  the  Compensation  Act,  means  much 
more  than  negligence,  and  more  than  gross  negligence.  To  be  guilty  of  will- 
ful misconduct,  the  party  so  guilty  must  consciously  do  a  wrong.  In  other 
words,  the  wrong  done  must  be  intentionally  done — it  must  be  an  intentional 
wrongdoing.  The  mere  doing  of  a  thing  in  a  careless  manner,  or  the  mere 
doing  of  a  thing  in  a  wrong  way,  without  intention  to  violate  a  necessary  rule 
of  safety  or  to  do  injury,  is  not  "willful  misconduct."  Nevadjic  v.  North- 
western Iron  Co.,  Bui.  Wis.  Indus.  Com.,  vol.  1,  p.  93;  Id.  1912-13,  p.  21,  af- 
firmed in  154  Wis.  97,  142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  191oB, 
877 ;  Hedges  v.  City  of  Los  Angeles,  1  Cal.  I.  A.  C.  Dec.  394 ;  Coelho  v.  Ride- 
out  Co.,  2  Cal.  I.  A.  C.  Dec.  773.  Where  the  hazard  is  manifest,  and  the  ex- 
periment premeditated,  and  the  act  not  required  by  his  duties  nor  the  inter- 
ests of  his  employer,  such  act  amounts  to  a  willful  disregard  for  the  employe's 
own  life  and  bodily  safety,  and  constitutes  willful  misconduct.  Downer  v. 
Lasky  Feature  Play  Co.,  2  Cal.  I.  A,  C.  Dec.  316.  "  "Willful  misconduct'  means 
misconduct  to  which  the  will  is  a  party,  something  opposed  to  accident  or  neg- 
ligence ;  the  misconduct,  not  the  conduct,  must  be  willful.  It  has  been  said, 
and  I  think  correctly,  that  perhaps  one  condition  of  'willful  misconduct'  must 


549  DEFENSES  TO  COMPENSATION  CLAIMS  §  140 

one  liable  to  a  trespasser  or  bare  licensee;  ^°  conduct  exceeding-  the 
furthermost  limits  of  negligence  and  amounting  to  a  willful  ex- 
be  that  the  person  guilty  of  it  should  know  that  mischief  will  result  from  it. 
But  to  my  mind  there  might  be  other  'willful  misconduct.'  I  think  it  would 
be  willful  misconduct  if  a  man  did  an  act  not  knowing  whether  mischief 
Viould  or  would  not  result  from  it.  I  do  not  mean  when  in  a  state  of  igno- 
rance, but  after  being  told:  'Now  this  may  or  may  not  be  the  right  thing  to 
do.'  He  might  say:  'Well,  I  do  not  know  which  is  right,  and  I  do  not  care. 
I  will  do  this.'  I  am  much  inclined  to  think  that  that  would  be  'willful  mis- 
conduct,' because  he  acted  under  the  supposition  that  it  might  be  mischievous, 
and  with  an  indifference  to  his  duty  to  ascertain  whether  it  was  mischievous 
or  not.  I  think  that  would  be  willful  misconduct."  Bramwell,  L.  J.,  in 
Lewis  V.  Great  Western  Ry.  Co.  (1877)  3  Q.  B.  D.  206.  The  consideration  of 
mere  negligence  is  out  of  place,  and  it  is  sufficient  if  the  claimant  can  show 
that  the  accident  arose  out  of  and  in  the  course  of  the  employment,  though  the 
workman  may  have  been  negligent  at  the  time.  McMcholas  v.  Dawson  (1S99) 
1  W.  C.  C.  86,  87. 

The  applicant  was  working  under  a  car  in  the  process  of  construction  in 
Buch  a  position  that  he  would  be  seriously  injured  by  the  moving  of  the  car 
while  so  engaged.  The  usual  signals  preceding  such  movement  were  given, 
and  applicant  had  been  instructed  in  the  same.  It  was  held  the  failure  of 
the  applicant,  through  inattention,  lack  of  mental  alertness,  or  on  account  of 
the  noise,  to  hear  and  comprehend  the  signals,  did  not,  under  the  facts  in 
this  case,  constitute  intentional  and  willful  misconduct.  Jankowski  v.  Ameri- 
can Car  &  Foundry  Co.,  Mich.  Wk.  Comp.  Cases  (1916) ,  327. 

The  proof  that  a  farm  servant  tied  the  reins  to  the  brake  wheel  of  the 
lorry  he  was  driving,  instead  of  holding  them  in  the  proper  way,  and  that  in 
consequence  he  was  injured  by  the  horse  pulling  around  and  upsetting  the 
lorry,  was  evidence  of  serious  and  willful  misconduct.  Vaughan  v.  Nicoll 
(1906)  8  F.  464,  Ct.  of  Sess.  (Act  of  1897). 

Acts  not  constituting  tvillfiil  misconduct:  Where  a  night  watchman  in  the 
employ  of  a  construction  company,  knowing  that  escaping  robbers  were  in  the 
vicinity,  through  a  mistake  fired  on  deputy  sheriffs,  who  returned  the  fire  and 
injured  him.  In  re  Harbroe,  223  Mass.  139,  111  N.  E.  709.  In  Barksdale  v. 
Fidelity  &  Deposit  Co.  of  Md.,  2  Mass.  Wk.  Rep.  of  Comp.  Cases,  214  (decision 
of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.),  wherein  it  appeared  that  the 
insurer  declined  to  pay  compensation  on  the  ground  that  the  employe  had 
unreasonably  neglected  to  obtain  proper  medical  attention,  and  that  such 
neglect  constituted  serious  and  willful  misconduct,  and  the  evidence  showed 
that  the  employ^  had  not  neglected  to  obtain  such  attention,  compensation 
was  allowed.    Michigan.    Where  a  delivery  boy  riding  a  bicycle  caught  on  the 

10  In  re  Nickerson,  218  Mass.  158,  105  N.  E.  604,  Ann.  Cas.  1916A,  790. 


§  140  workmen's  compensation  550 

rear  end  of  a  motor  truck,  which  turned  suddenly,  causing  him  to  be  thrown 
to  the  pavement  and  injured.  (Wk.  Comp.  Act,  pt.  2,  §  2)  Beaudry  v.  Watkins 
(Mich.)  158  N.  W.  16.  Where  the  injured  workman  stated,  in  response  to  the 
question  of  his  physician,  that  he  was  not  an  alcoholic,  when  he  was  in  fact 
addicted  somewhat  to  the  use  of  liquor,  there  being  nothing  to  show  that  he 
understood  that  his  answer  would  affect  the  treatment  given,  or  to  what 
extent  he  needed  to  be  addicted  to  the  use  of  liquor  to  become  an  alcoholic. 
Ramlow  v.  Moon  Lake  Ice  Co.  (Mich.)  158  N.  "W.  1027.  Wbere  an  employe, 
coming  down  off  a  roof  on  which  he  was  working,  descended  by  means  of  a 
rope,  and  was  killed  by  losing  his  hold  and  falling,  there  being  no  proof  that 
any  order  or  rule  forbidding  the  use  of  a  rope  in  descending  was  communi- 
cated or  made  known  to  decedent,  and  it  appearing  that  other  employes  used 
the  rope  method  in  descending,  and  that  deceased  used  much  care  in  letting 
himself  down  over  the  edge  of  the  roof  with  such  rope.  Clem  v.  Chalmers 
Motor  Car  Co.,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  40,  178  Mich.  340,  144 
N.  W.  84S,  L.  R.  A.  1916A,  352.  California.  Where  a  miner  was  instructed  by 
his  foreman  to  complete  his  work  in  the  shaft  where  he  was  and  then  go  to 
another  shaft,  and,  after  finishing  his  work  and  sending  word  to  the  foreman 
that  he  was  awaiting  another  assignment,  went  to  the  surface  of  the  ground, 
and  stopped  temporarily  to  rest  and  ohtain  relief  from  the  extreme  heat  in 
the  shade  of  an  ore  bin,  a  place  commonly  used  for  that  purpose  by  the 
miners,  and  was  killed  by  the  collapse  of  the  bin.  Brooklyn  Mining  Co.  v. 
Indus.  Ace.  Com.  of  State  of  Cal.  (Cal.  Sup.)  159  Pac.  162.  Where  an  employe 
removed  a  sliver  from  his  finger  with  a  pocket  knife,  after  warning  of  danger 
of  infection,  even  though  infection  developed  in  the  finger,  unless  it  could  be 
shown  that  the  knife  was  the  means  of  introducing  the  infection.  Blaine  v. 
McKinsey,  1  Cal.  I.  A.  C.  Dec.  641.  Where  a  bartender  was  shot  dead  upon 
his  refusal  to  throw  up  his  hands  at  the  order  of  two  hold-up  men  attempting 
to  rob  a  saloon  at  midnight,  and  while  the  bartender  was  trying  to  reach  the 
adjoining  room  to  get  a  revolver.  Henning  v.  Henning,  2  Cal.  I.  A.  C.  Dec. 
733.  Where  the  man  was  injured  by  the  explosion  of  dynamite  caps  which  he 
was  holding  in  his  hand  at  the  time,  caused  by  sparks  from  a  lighted  fuse 
which  he  held  in  his  other  hand  while  his  foreman  was  testing  it  with  a 
lighted  match  to  see  whether  it  was  defective;  the  fuse  not  being  attached 
to  the  caps,  and  he  being  an  experienced  powder  man  and  under  the  direct 
supervision  of  his  foreman  at  the  time.  Andreucetti  v.  California  Brick  Co., 
2  Cal.  I.  A.  C.  Dec.  284.  Where  there  were  no  life  preservers  and  no  fire 
extinguishers  on  a  burning  launch,  and  there  was  on  board  a  quantity  of 
gasoline,  which  might  have  ignited  and  exploded,  and  the  occupants  attempted 
with  fatal  results  to  swim  to  a  boom  300  feet  away;  their  fault  being  an 
error  of  judgment,  not  amounting  to  suicidal  intent  nor  willful  misconduct. 
Ruprecht  v.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  864.  Where  a  deck 
hand  on  a  stormy  night  was  last  seen  by  a  fellow  employ^  leaning  over  a 
post  fixed  in  the  deck  about  one  foot  from  the  edge  of  the  barge,  and  was 


551  DEFENSES  TO  COMPENSATION  CLAIMS  §  140 

posure  to  a  hazardous  situation. ^^  Wanton  and  reckless  disregard 
of  danger,  equivalent  to  foolhardiness,  or  a  perverse  and  obstinate 

warned,  "Frank,  are  you  crazy?  Stand  up.  Come  on  inside,"  to  wliich  he 
replied,  "No,  leave  me  alone,"  and  continued  to  remain  in  his  perilous  posi- 
tion, his  body  afterwards  being  found  washed  upon  the  shore,  and  there  being 
no  evidence  of  any  safety  rule  given  by  the  employer  or  broken  by  the  em- 
ploye. Coelho  V.  Rideout  Co.,  2  Cal.  I.  A.  C.  Dec.  773.  Connecticut.  Where 
the  shaping  of  a  piece  of  wood,  necessary  for  his  work,  on  a  machine,  was 
rendered  especially  hazardous  by  its  small  size  and  because  the  grain  ran 
crosswise,  making  it  more  easy  to  break,  but  the  workman  did  not  know  this. 
Lane  v.  Aeolian  Co.,  1  Conn.  Comp.  Dec.  32.  Where,  according  to  their  usual 
custom,  the  decedent,  a  motorman  on  a  passenger  car,  arranged  orally  with 
the  motorman  of  an  express  car  where  they  should  pass  on  the  return  trip, 
and  decedent,  after  running  nine  or  ten  miles,  ran  by  the  switch  designated 
and  into  a  collision  with  the  express  car,  which  resulted  fatally  for  him,  and 
it  further  appeared  that  the  switch  designated  by  number  bore  a  resemblance 
to  the  next  one,  just  past  the  place  of  accident.  Dalton  v.  Connecticut 
Co.,  1  Conn.  Comp.  Dec.  142,  England..  Where  a  miner  on  a  haulage 
road,  knowing  that  trams  were  coming,  tried  to  reach  a  manhole,  and 
while  so  doing,  perhaps  negligently,  had  his  leg  broken  when  the  haul- 
age rope  slipped.  Rees  v.  Powell  Duffryn  Steam  Coal  Co.,  Ltd.  (1900)  4 
W.  C.  C.  17,  C.  A.  (Act  of  1S97).  Where  an  engine  driver,  walking  down 
the  tracks  after  his  day's  work  to  report  at  the  station  before  going  home, 
walked  between  the  rails,  although  to  his  knowledge  a  down  train  had  al- 
ready been  signaled,  and  was  struck  and  killed  by  the  train.  Tod  v.  Cale- 
donian Ry.  Co.  (1899)  1  F.  1047,  Ct.  of  Sess.  (Act  of  1897).  Where  a  farm 
servant  fastened  the  reins  to  his  cart,  instead  of  holding  them  in  his  hands, 
it  occurring  that  the  horse  bolted,  upsetting  the  cart,  and  fatally  injured  the 
servant.  Lyall  v.  Whitton  (1907)  S.  C.  12G7,  Ct.  of  Sess.  Where  a  workman, 
watching  for  land  slips  on  a  railway  line,  went  along  the  line  300  yards  to  a 
fire,  where  another  workman  was  posted,  where  he  was  run  over  and  killed. 
Glasgow  &  Southwestern  Ry.  Co.  v.  Laidlaw  (1900)  2  F.  70S,  Ct.  of  Sess.  (Act 
of  1897). 

11  Clark  V.  Los  Angeles  County,  1  Cal.  I.  A.  C.  Dec.  623. 

Excessive  speed. — Where  an  employe  was  killed  while  driving  an  automo- 
bile at  from  35  to  45  miles  an  hour,  he  was  guilty  of  willful  misconduct, 
though  such  speed  was  not  unusual  or  so  excessive  as  to  amount  to  foolhardi- 
ness or  in  violation  of  his  employer's  instructions.  Fidelity  &  Deposit  Co.  of 
Md.  V.  Industrial  Accident  Commission,  171  Cal.  728,  154  Pac.  834.  Where 
proof  offered  in  support  of  the  defense  of  willful  misconduct  in  speeding  an 
automobile  does  not  show  that  the  driving  was  extraordinary  or  unnecessarily 
dangerous,  the  defense  is  not  established.     Phillips  v.  Chanslor-Canfield  Mid- 


§  140  workmen's  compensation  552 

breach  of  safety  rules,  must  be  established  to  prove  willful  mis- 
conduct.^^    Where  an  employe,  unnecessarily  and  in  the  exercise 

way  Oil  Co.,  1  Cal.  I.  A.  C.  Dec.  5S0.  In  determining  whether  or  not  the  fast 
driving  of  an  automobile  constitutes  willful  misconduct,  the  Commission  must 
be  guided  by  such  fundamental  facts  as  the  condition  of  the  road,  the  time  of 
day,  and  the  character  of  the  car.  Driving  an  automobile  at  a  speed  of  35  to 
45  miles  in  the  dark,  over  a  fairly  good  and  straight  road,  by  a  driver  familiar 
with  it,  in  a  heavy,  powerful  car,  equipped  with  strong  lights,  may  be  hazard- 
ous, but  does  not  exceed  gross  negligence,  nor  constitute  willful  misconduct. 
Head  v.  Head  Drilling  Co.,  2  Cal.  I.  A.  C.  Dec.  279.  Where  an  employe  is 
violating  a  municipal  ordinance  at  the  time  of  his  injury,  this  fact  does  not 
by  itself  establish  willful  misconduct,  where  the  act  in  violation  of  the  ordi- 
nance would  not  constitute  misconduct,  in  the  absence  of  such  ordinance. 
Undoubtedly  there  are  laws  founded  upon  principles  of  morality  or  public 
policy,  the  breach  of  which  is  so  far  contrary  to  the  public  welfare  as  to 
deprive  the  wrongdoer  of  any  claim  to  compensation  for  injuries  sustained 
by  such  breach ;  but  this  is  not  the  case  where  the  breach  is  of  a  minor  stat- 
ute or  ordinance,  whose  only  function  is  more  conveniently  to  regulate  inter- 
course in  crowded  communities,  where  the  act  involved  is  not  malum  in  se, 
but  merely  malum  prohibitum.  Traffic  ordinances  fall  in  the  latter  class,  and 
their  violation  does  not  by  itself  constitute  willful  misconduct.  Hedges  v. 
City  of  Los  Angeles,  1  Cal.  I.  A.  C.  Dec.  394.  Riding  a  motorcycle  along  a 
crowded  thoroughfare  in  a  large  city  at  a  rate  estimated  at  about  forty- 
five  miles  per  hour,  without  extreme  necessity,  constitutes  such  a  flagrant 
disregard  for  the  rider's  own  life  and  limb  and  bodily  safety  as  to  amount  to 
willful  misconduct.  Bohma  v.  Western  Union  Telegraph  Co.,  2  Cal.  I.  A.  C. 
Dec.  246.  Where  the  applicant,  an  employ^  of  a  firm  dealing  in  racing  motor- 
cycles, took  a  motorcycle  out  on  a  race  track  to  test  its  engine  and  speed,  as 
instructed  by  the  employer,  and,  while  speeding  at  62  miles  an  hour,  crashed 
into  a  fence,  resulting  in  serious  injury,  such  accident  was  compensable. 
Lawson  v.  Stockton  Motorcycle  &  Supply  Co.,  2  Cal.  I.  A.  C.  Dec.  649. 

12  Haffemayer  v.  United  Keanograph  Film  Mfg.  Co.,  1  Cal.  I.  A.  C.  Dec.  620. 
Willful  misconduct  consists  either  in  the  willful  disregard  of  rules  made  by 
the  employer  for  the  protection  of  his  employes,  or  in  the  unnecessary  taking 
of  risks  by  the  employ^  to  an  extent  so  far  exceeding  the  requirements  of 
negligence  as  to  amount  to  foolhardiuess  or  dare-deviltry.  Hedges  v.  City  of 
Los  Angeles,  supra. 

Dangerous  place. — In  an  action  under  the  Workmen's  Compensation  Act 
(Laws  1911,  c.  218),  the  admitted  facts  showed  that  plaintiff  was  injured  by 
being  caught  in  the  revolving  cylinders  of  a  machine  while  standing  in  or 
upon  it  and  applying  compressed  air  for  the  purpose  of  cleaning  the  cylinders. 
Covers  or  hoods  were  provided  for  use  when  the  machine  was  in  operation. 


553  DEFENSES  TO  COMPENSATION  CLAIMS  §  140 

of  bad  judgment,  resorts  to  a  dangerous  machine,  instead  of  using 
the  regular  tools,  but  has  not  been  forbidden  to  use  the  machine, 
injuries  received  are  not  caused  by  willful  misconduct.^^ 

but  iu  order  to  clean  the  machine  the  covers  had  to  be  removed.  The  plain- 
tiff could  have  stood  on  the  ground  and  applied  the  air  without  danger  of 
coming  in  contact  with  the  revolving  cylinders.  The  court  held  that  plaintiff 
was  not  barred  from  the  right  to  recover  compensation  by  the  provision  of 
section  1  of  the  Compensation  Act,  on  the  ground  that  his  injury  resulted  from 
his  deliberate  intent  to  cause  the  injury,  or  from  his  willful  failure  to  use 
a  guard  provided  for  him  as  protection  against  accident.  Messick  v.  Mc- 
Entire,  97  Kan.  813,  156  Pac.  740.  California.  Where  the  employe  was  di- 
rected to  polish  brass  rails  in  the  engine  room  of  the  vessel  and  went  inside 
a  railing  the  better  to  fulfill  his  task,  but  his  going  inside  the  railing  was 
attended  by  some  danger,  and  no  specific  instructions  were  issued,  either  to 
go  inside  the  railing  or  not  to  do  so,  and  such  employ^  was  injured  by  falling 
into  the  machinery,  such  employe  was  not  guilty  of  willful  misconduct,  and 
was  entitled  to  compensation  for  his  injury.  Rose  v.  North  Pacific  Steamship 
Co.,  2  Cal.  I.  A.  C.  Dec.  57.  Where  there  were  no  fixed  means  of  ingress,  and 
instead  of  climbing  over  a  lumber  pile  to  board  the  ship,  a  stevedore  used 
the  hoisting  gear  to  get  aboard,  and  was  thrown  upon  the  deck  and  injured 
through  the  carelessness  of  a  winchman,  it  appearing  that  the  hoisting  gear 
was  frequently  used  by  stevedores  and  others  for  that  purpose,  and  that  it 
was  sometimes  the  least  dangerous  method,  its  use  by  the  applicant  did  not 
constitute  willful  misconduct.  Soderstrom  v.  Hart- Wood  Lumber  Co.,  2  Cal. 
I.  A.  C.  Dee.  6S8.  England.  Where  a  miner  in  getting  a  tool  crossed  the 
bottom  of  the  shaft  just  after  the  cage  had  been  raised,  and  was  injured  by 
its  being  lowered  upon  him  without  warning,  considering  that,  although  there 
was  no  specific  rule  forbidding  such  action,  it  was  known  notoriously  among 
the  employes  to  be  a  dangerous  act,  and  that  a  pass  was  provided,  so  that 
such  action  was  not  necessary,  there  was  evidence  of  serious  and  willful  mis- 
conduct. Leishman  v.  Dixon,  Ltd.  (1910)  3  B.  W.  C.  C.  500,  Ct.  of  Sess. 
Where  a  miner,  leaving  his  work  by  the  main  haulage  road,  was  advised  to 
get  into  a  manhole  because  trams  were  coming,  and  continued  on  his  way 
unheeding,  passing  six  other  manholes,  and  was  finally  struck  and  killed  by 
the  trams,  his  action  was  serious  and  willful  misconduct.  John  v.  Albion  Coal 
Co.,  Ltd.  (1902)  4  W.  C.  C.  15,  C.  A.  (Act  of  1S97).  Where  a  miner,  dis- 
regarding the  danger,  attempted  to  cross  rails  upon  an  incline,  where  hutches 
were  running  up  and  down,  instead  of  waiting  until  they  were  no  longer 
running,  he  was  guilty  of  serious  and  willful  misconduct.  Condron  v.  Gavin 
Paul  &  Sons,  Ltd.  (1904)  6  F.  29,  Ct.  of  Sess.  (Act  of  1S97). 
Foolliardiness. — A  carpenter,  employed  to  construct  the  necessary  scenery 


13  Ponder  v.  Adams  &  McBratney,  1  Cal.  I.  A.  C.  Dec.  207. 


8  140  workmen's  compensation  554 

A  distinction  should  be  drawn  between  the  intentional  opera- 
tion of  a  machine  without  a  safety  guard  provided,  and  the  care- 
less removal  of  such  safety  guard  too  soon  after  the  shutting  off  of 
the  power;  such  removal  being  necessary  for  the  purpose  of  repair. 
The  former  is  willful  misconduct,  as  it  is  done  solely  for  an  im- 
proper purpose,  namely,  the  operation  of  the  machine  in  a  forbid- 
den manner;  the  latter  is  merely  negligent,  as  done  for  a  proper 
purpose,  but  carelessly.^* 

An  assistant  foreman,  who  could  have  escaped  in  safet}'^  from  the 
place  where  he  was  working  upon  warning  of  danger,  but  remained 
to  rescue  a  fellow  workman  in  peril,  and  lost  his  life  in  conse- 
quence, was  not  guilty  of  willful  misconduct  in  so  remaining.  Even 
though  he  deliberately  exposed  himself  to  the  danger  of  injury  and 
death,  his  action  cannot  be  said  to  be  willful  in  the  sense  of  being 
stubborn,  perverse,  or  as  evidencing  a  state  of  mind  opposed  to  the 
orders  or  instructions  given  him,  or  as  opposed  to  the  action  that 
reasonably  should  have  been  taken  by  him,  both  as  a  fellow  em- 
ploye and  in  his  official  capacity.^" 

for  the  production  of  a  motion  picture,  touched  off  the  fuse  of  a  bomb  used  in 
the  play  with  a  lighted  match,  "to  see  what  it  would  do."  His  action  amounted 
to  willful  misconduct.  Downer  v.  Lasky  Feature  Play  Co.,  2  Cal.  I.  A.  C.  Dec. 
316.  Where  an  aviator  was  at  the  time  of  the  accident  performing  no  especial 
feats  and  taking  no  extra  risks,  hut  was  engaged  in  straightaway  flying,  and 
a  vacuum  created  in  the  air  by  the  explosion  of  a  bomb  below  his  machine 
caused  his  precipitation  to  the  earth,  and  death,  there  was  no  foolhardiness 
or  dare-deviltry  which  could  be  construed  as  constituting  willful  misconduct. 
Stites  V.  Universal  Film  Mfg.  Co.,  2  Cal.  I.  A.  C.  Dec.  670. 

Where  a  workman,  traveling  on  a  barge  in  the  course  of  his  employment, 
Imt  having  no  duties  to  perform  during  the  trip,  was  seen  leaning  against  a 
post  near  the  edge  of  the  barge,  but  on  the  inside  of  the  post,  shortly  before 
he  disappeared,  his  body  being  later  washed  ashore,  the  court  holding  that 
he  was  not  guilty  of  such  reckless  foolhardiness  as  to  bar  compensation, 
though  his  conduct  was  not  careful.  W.  R.  Rideout  Co.  v.  Pillsbury  (Cal. 
Sup.)  159  Pac.  435. 

14  Southern  Cal.  Hardwood  &  Mfg.  Co.  v.  Adams,  1  Cal.  I.  A,  C.  Dec.  406. 

15  Mihaica  v.  Mlagenovich,  1  Cal.  I.  A.  C.  Dec.  174. 

An  attempt  to  save  the  life  of  a  fellow  employe,  even  though  intensely 
hazardous,  is  not  willful  misconduct.    Maffia  v.  Aquiliuo,  3  Cal.  I.  A.  C.  Dec.  15. 


355  DEFENSES  TO   COMPENSATION  CLAIMS  §    141 

The  words  "purposely  self-inflicted,"  as  used  in  the  Ohio  Act, 
imply  the  unquestioned  design  of  self-injury — an  inward  purpose 
of  injuring  one's  self^ — that  must  be  shown  by  evidence.^®  Proof 
of  acts  which  at  common  law  constitute  gross  negligence  raises  no 
presumption  that  a  resulting  injury  to  an  employe  guilty  of  such 
negligence  was  "purposely  self-inflicted."  ^'' 

§  141.     Disobedience — Violation  of  rules 

That  the  injury  was  occasioned  by  the  employe's  intentional  dis- 
obedience of  an  order  i§  not  conclusive  against  him.  To  have  that 
effect  the  disobedience  must  have  been  willful ;  ^^  it  must  have 
been  intentional,  and  premeditated,  and  must  have  proceeded  from 
a  conscious  motion  of  the  will  in  opposition  to  the  authority  of  the 

16  (Wk.  Comp.  Act  1913,  §§  21,  25,  and  27)  Stopyra  v.  U.  S.  Coal  Co.,  vol. 
1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  92. 

17  Id. 

IS  In  re  Nickerson,  218  Mass.  158,  105  N.  E.  G04,  Ann.  Cas.  1916A,  790: 
Johnson  v.  Marshall,  Sons  &  Co.,  Ltd.,  [1906]  A.  C.  409,  411.  "It  must  have 
been  with  the  intention  of  being  guilty  of  serious  misconduct."  Lord  James  of 
Hereford,  in  Bist  v.  London  &  Southwestern  By.  Co.  (1908)  9  W.  0.  C  24. 
Convincing  proof  of  the  deliberate,  intentional  violation  of  a  rule,  formulated, 
brought  to  the  attention  of  those  whom  it  is  designed  to  govern,  and  diligently 
enforced,  will  establish  willful  misconduct.  An  Infraction  of  rules  and 
orders  issued  and  promulgated  with  less  form,  and  enforced  with  little  or 
no  diligence,  will  not  establish  willful  misconduct  as  a  defense.  Fisco  v. 
Hazel  Gold  Mining  Co.,  1  Cal.  I.  A.  C.  Dec.  30.  Where  it  appears  that  the 
disobedience  of  an  oral  instruction  was  not  actuated  by  willful  desire  to  dis- 
obey an  order,  but  by  a  wish  to  further  the  employer's  interests,  the  miscon- 
duct, if  any,  is  not  willful,  so  as  to  defeat  a  claim  for  compensation  for  the 
disability  resulting  from  the  accidental  injury  suffered  by  the  employ^.  Su- 
gar V.  Atlas  Taxicab  Co.,  1  Cal.  I.  A.  C.  Dec.  34. 

Where  it  was  part  of  the  duties  of  the  applicant  to  load  lumber  upon  an  au- 
tomobile truck,  and  he  had  been  instructed  not  to  get  out  over  the  wheel  in 
getting  off  the  truck,  and  did  get  off  over  the  wheel,  and  received  injuries 
thereby,  but  there  was  also  evidence  to  show  that  at  the  time  of  the  accident 
the  other  means  of  leaving  the  truck  were  blocked,  while  such  evidence  es- 
tablishes misconduct,  it  fails  to  establish  willful  misconduct,  as  required  by 
the  act.    Van  Lanker  v.  County  of  Los  Angeles,  1  Cal.  I.  A.  C.  Dec.  107. 


§  141  workmen's  compensation  556 

employer.^^  But  an  employe  who  violates  a  reasonable  rule  made 
for  his  own  protection  from  serious  bodily  injury  or  death  is  guilty 
of  misconduct,  and  if  he  deliberately  violates  a  rule  or  order,  with 
knowledge  of  its  existence  and  of  all  the  dangers  accompanying  its 
violation,  he  is  guilty  of  willful  misconduct.^**  In  the  cases  where 
neglect  of  a  rule  has  been  held  not  to  amount  to  serious  and  willful 

19  Winter  v.  Johnson-Pollock  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  387.  Mere 
disobedience  of  an  order  does  not  necessarily  constitute  willful  misconduct, 
in  the  absence  of  a  showing  that  the  disobedience  was  willful  and  premedi- 
tated, and  was  prompted  by  a  bad  state  of  mind.  Collins  v.  Bodin,  2  Cal.  I. 
A.  C.  Dec.  153.  A  definition  of  "willful  misconduct"  applicable  to  all  cases 
cannot  be  formulated.  It  may  be  stated  in  a  general  way  that  the  willful 
violation  of  a  rule  or  order  made  for  the  employe's  own  safety,  or  the  safety 
of  others,  and  made  by  a  power  having  authority  to  make  such  rule  or  order, 
and  enforced  with  diligence,  will  constitute  willful  misconduct.  There  must 
be  a  rule  or  order,  as  distinguished  from  a  warning.  It  must  have  been 
diligently  enforced.  It  must  appear  that  the  employ^  is  refractory,  or  in- 
tentionally and  premeditatedly  disobedient,  in  order  to  constitute  willful- 
ness. Lutz  v.  Gladding,  McBean  &  Co.,  1  Cal.  I.  A.  C.  Dec.  8.  Where  a  work- 
man, hired  to  oil  machinery,  was  forbidden  to  oil  it  while  it  was  in  motion, 
and  disobeyed  his  instruction  in  this  respect,  and  as  a  result  was  fatally 
injured,  his  action  did  not  amount  to  willful  misconduct.  Mawdsley  v.  West 
Leigh  Colliery  Co.,  Ltd.  (1912)  5  B.  W.  C.  C.  SO,  C.  A. 

2  0  Coelho  v.  Eideout  Co.,  2  Cal.  I.  A.  C.  Dec.  773.  "I  think  that  we  clearly 
expound  the  intention  which  the  Legislature  had  in  framing  the  statute  if 
we  hold  that  that  which  is  'serious  and  willful  misconduct'  must  be  clearly 
established  against  the  plaintiff  who  seeks  damages.  Also  it  occurs  to  me 
that  the  word  'willful'  must  not  only  mean  a  mere  intentional  breach  of  a  rule, 
but  it  must  also  mean  willful  with  the  intention  of  being  guilty  of  misconduct. 
*  *  *  If  there  may  be  such  a  case  of  a  breach  of  the  rule,  where  the  person 
through  whose  act  the  cause  of  action  arises  has  done  an  intentional  act,  we 
must,  before  we  give  effect  to  the  words  'serious  and  willful  misconduct,'  see 
what  was  in  the  man's  mind  at  the  time  that  he  did  so  break  the  rule.  In 
this  case,  when  we  look  at  the  effect  which  is  to  be  given  to  the  word  'serious,' 
as  controlling  it,  I  do  not  think  that  we  can  find  that  it  is  'serious'  in  conse- 
quence of  the  unfortunate  man  being  killed.  He  did  not  contemplate  that  for 
a  moment."  Lord  James  of  Hereford,  in  Bist  v.  London  &  Southwestern  Ry. 
Co.  (190S)  9  W.  C.  C.  19,  H.  L.  (Act  of  1897).  Where  the  employer  has  pub- 
lished a  great  number  of  safety  rules  of  a  general  character,  and  no  one  of 
which  has  been  brought  to  the  special  attention  of  an  employ^  with  refer- 
ence to  his  specific  duty,  the  refusal  to  obey  said  rules  must  be  premeditated. 


557  DEFENSES  TO  COMPENSATION  CLAIMS  §  141 

deliberate,  and  designed,  in  order  to  constitute  willful  misconduct.     Swank 
V.  Chanslor-Canfield  Midway  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  330. 

Violation  of  safety  rules.- — Where  an  experienced  lineman  disobeyed  a  rule 
of  the  employer  and  handled  a  "hot  wire"  without  the  rubber  gloves  provided 
by  the  employer,  and  at  hand,  he  was  guilty  of  "willful  misconduct."  (St. 
1911,  p.  796)  Great  Western  Power  Co.  v.  Pillsbury,  170  Cal.  180,  149  Pac.  35. 
Where  a  lineman  at  work  at  the  top  of  a  pole  had  a  safety  belt  on  his  person, 
but  neglected  to  use  it,  thereby  violating  a  printed  rule  of  his  employer  that 
a  safety  belt  must  be  used  when  working  on  any  structure,  and  the  use  of 
the  belt  would  have  prevented  the  injury,  such  neglect  to  wear  the  belt  was 
willful  misconduct,  although  the  risk  involved  in  such  disobedience  under  the 
circumstances  was  considered  by  him  and  other  linemen  and  their  foreman  to 
be  negligible,  and  the  accident  was  due  to  an  undisclosed  and  unusual  defect 
peculiar  to  the  pole  on  which  he  was  working.  Lockwood  v.  Pacific  Gas  & 
Electric  Co.,  3  Cal.  I.  A.  C.  Dec.  26.  Except  where  a  violation  of  safety  rules 
laid  down  by  the  employer  is  shown,  acts  of  the  employ§  imperiling  his  own 
safety  do  not  constitute  willful  misconduct,  unless  they  so  far  exceed  ex- 
treme negligence  as  to  constitute  foolhardiness  or  dare-deviltry.  Hedges  v. 
City  of  Los  Angeles,  1  Cal.  I.  A.  C.  Dec.  394.  Where  an  employe  was  in  the 
service  of  a  municipal  corporation  and  received  an  injury  in  the  course  of  his 
employment,  but  while  breaking  a  municipal  ordinance,  it  cannot  be  said  that 
he  was  guilty  of  violation  of  a  safety  rule  imposed  by  his  employer  for  the 
safety  of  its  employes,  where  such  ordinance  was  enacted  for  the  regulation 
of  the  general  public,  and  not  for  the  guidance  of  municipal  employes  only. 
Id.  Where  an  employ^  failed  to  use  a  safety  device  placed  for  his  own  pro- 
tection on  the  machine  he  was  working  at,  and  it  was  a  rule  of  his  employer, 
diligently  enforced,  that  employes  must  never  use  the  machine  without  using 
the  protection  provided,  but  the  employg  had  dispensed  with  the  safety  de- 
vice because  he  wished  to  get  the  work  he  was  upon  done  more  quickly,  and 
was  injured  by  the  machine  because  of  his  failure  to  use  said  protection,  the 
injuries  were  caused  by  the  willful  misconduct  of  the  employ^,  and  he  was 
not  entitled  to  compensation  therefor.  Gordon  v.  San  Francisco-Oakland  Ter- 
minal Rys.,  1  Cal.  I.  A.  C.  Dec.  232.  Where  a  person  moving  flour  in  sacks 
was  twice  instructed  on  the  morning  of  his  injury  to  take  the  sacks  from  the 
top  of  the  pile,  and  not  out  of  the  middle,  on  account  of  danger  involved  in 
removing  them  from  the  middle  of  the  pile,  and  where  he  was  injured  by  the 
pile  falling  over  upon  him,  due  to  his  taking  the  sacks  out  of  the  middle, 
such  injury  was  caused  by  the  willful  misconduct  of  the  employe,  and  compen- 
sation should  be  denied.  Curless  v.  Peninsula  Warehouse,  1  Cal.  I.  A.  C.  Dec. 
354.  Where  an  electric  lineman,  while  at  work  on  the  top  of  a  pole  carrying 
high  current  wires,  received  a  shock  causing  him  to  fall,  resulting  in  his 
death,  and  it  appeared  that  he  was  working  at  the  time  without  rubber  gloves 
or  safety  belt,  which  would  have  prevented  the  accident,  and  which,  under 
the  rules  of  the  employer,  well  known  to  the  employ^,  were  required,  and  that 


§  141  workmen's  compensation  558 

he  had  been  expressly  warned  by  both  his  foreman  and  fellow  workman 
almost  immediately  prior  to  the  accident,  such  neglect  and  refusal  consti- 
tutes willful  misconduct,  and  was  the  cause  of  the  accident.  Lines  v.  Pacific 
Gas  &  Electric  Co.,  2  Cal.  I.  A.  C.  Dec.  837.  Where  an  employe,  during  work- 
ing hours,  sat  down  to  rest  in  the  shade  under  an  ore  bin,  and  was  killed 
by  the  collapse  of  the  bin,  this  fact  does  not  establish  willful  misconduct,  in 
the  absence  of  evidence  tending  to  show  that  deceased  had  been  forbidden 
to  rest  in  the  shade  under  this  bin  for  brief  periods  of  time  during  working 
hours,  especially  where  the  evidence  fails  to  show  that  there  was  reason  to 
anticipate  danger  in  resting  in  the  place  where  the  accident  occurred.  Goer- 
ing  V.  Brooklyn  Mining  Co.,  2  Cal.  I.  A.  C.  Dec.  141.  Where  foreigners,  who 
were  engaged  in  breaking  a  rock  in  which  dynamite  had  been  used,  had  been 
generally  warned  of  danger,  but  it  is  not  shown  that  the  warning  was  under- 
stood, or  that  the  act  resulting  in  the  acciolent  was  a  willful  breach  of  rules, 
an  employe  injured  by  an  explosion  of  dynamite,  which  had  remained  in  the 
rock,  was  not  .gmlty  of  willful  misconduct,  although  he  immediately  caused 
the  explosion  by  striking  the  rock.  Kraljlvich  v.  Yellow  Aster  Mining  & 
Milling  Co.,  1  Cal.  I.  A.  C.  Dec.  554.  Where  an  employe,  engaged  to  operate 
a  rotary  ripsaw  which  had  a  safety  guard  fixed  to  it,  and  having  strict  orders 
from  his  employer  that  the  saw  was  not  to  be  run  without  the  guard  being 
in  place,  and  where,  desiring  to  clean  out  the  sawdust  container  under  the 
saw,  he  caused  the  power  to  be  shut  ofE,  and,  after  waiting  the  usual  time  for 
the  saw  to  cease  revolving,  removed  the  safety  guard  and  was  injured  by  the 
saw,  which  was  still  revolving,  he  was  not  barred  from  compensation  on  the 
ground  of  willful  misconduct.  Southern  Cal.  Hardwood  &  Mfg.  Co.  v.  Adams, 
1  Cal.  I.  A.  C.  Dec.  406.  There  was  no  serious  and  willful  misconduct  where 
it  was  not  proven  that  the  applicant  was  forbidden  to  ride  back  to  the  studio 
on  horseback,  because  she  was  regarded  as  unable  to  control  the  horse  and 
would  be  in  some  danger  if  she  rode  it,  as  contended,  but  merely  that  she  mis- 
understood the  instructions  given  her,  which  does  not  prove  the  willful  vio- 
lation of  a  safety  rule.  Jansen  v.  Balboa  Amusement  Producing  Co.,  1  Cal. 
I.  A.  C.  Dec.  477.  A  rule  that  employes  working  with  certain  machines  are 
not  to  repair  them,  but  must  leave  the  repairing  to  be  done  by  a  special  me- 
chanic, is  not  usually  a  safety  rule  for  the  protection  of  employes,  but  rather 
a  rule  for  the  division  of  the  work  among  them.  Its  violation,  therefore,  does 
not  usually  constitute  willful  misconduct;  the  act  being  interpreted  to  mean 
that  only  violation  of  safety  rules  imposed  by  the  employer  for  the  protection 
of  his  workmen  shall  constitute  such  willful  misconduct.  Winter  v.  Johnson- 
Pollock  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  387.  Michigan.  A  workman  received 
injviries  to  his  hand  from  the  gears  in  a  carding  machine  in  appellant's  fac- 
tory. Gangrene  set  In  and  he  died  sixteen  days  after  the  injury.  Appellant 
contended  that  the  injury  was  the  result  of  the  willful  and  intentional  mis- 
conduct of  decedent,  by  his  disregarding  the  signs  warning  employes  to  keep 
their  hands  off  the  macliines  and  not  to  clean  machines  while  in  motion.    But 


559  DEFENSES  TO  COMPENSATION  CLAIMS  §  141 

the  Board  found  that  the  decedent  at  the  time  of  his  injury  was  picking  off 
some  cotton  which  liad  collected  on  the  carding  cylinder,  and  that  such  ac- 
tion was  necessary  and  ordinarily  performed  by  and  required  of  the  operator 
of  the  machine.  Mich.  Workmen's  Comp.  Mutual  Insur.  Co,  v.  Redfield,  Op. 
Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  34.  Wisconsin.  Where  a  conductor  on 
a  street  car  exchanged  places  with  the  motorman  and  undertook  to  run  the 
car  in  at  night,  without  there  being  an  emergency  requiring  such  action,  and 
knowing  that  he  was  wrongfully  violating  a  safety  rule  of  his  employer, 
made  for  his  and  the  public's  protection,  and  was  killed  when  the  car  jump- 
ed the  track,  his  death  was  the  result  of  serious  and  willful  misconduct.  Neu- 
mann V.  Milwaukee  Electric  By.  &  Light  Co.,  Bui.  Wis.  Indus.  Com.,  vol.  1, 
p.  92.  England.  Where  one  breaks  a  rule,  knowing  at  the  time  that  he  is 
breaking  it,  and  is  not  compelled  to  break  it  by  some  superior  power  which 
he  cannot  resist,  he  is  guilty  of  a  willful  breach  of  it.  An  engine  driver, 
contrary  to  a  posted  rule  of  which  he  knew,  climbed  upon  the  tender  of  an 
engine  while  it  was  in  motion,  and  was  killed  while  it  was  passing  under  a 
bridge;  his  action  constituted  serious  and  willful  misconduct.  Bist  v.  Lon- 
don &  South  Western  Ry.  Co.  (190S)  9  W.  C.  C  19,  H.  L.  (Act  of  1897).  Where 
a  workwoman  disobeyed  the  rules  and  practice  of  the  factory,  and  tried  to 
clean  some  machinery  while  it  was  in  motion,  she  was  guilty  of  serious  and 
willful  misconduct.  Guthrie  v.  Boase  Spinning  Co.,  Ltd.  (1901)  3  F.  7G9  (Act 
of  1897) .  Where  employers  posted  a  notice  forbidding  the  use  of  a  lift  by  any 
of  their  employes  miless  they  were  in  charge  of  a  load,  and  a  workman  who 
had  no  load  was  found  fatally  injured  in  the  lift,  his  act  did  not  constitute 
serious  and  willful  misconduct.  Johnson  v.  Marshall  Sons  &  Co.,  Ltd.  (1908) 
8  W.  C.  C.  10,  H.  L.  (Act  of  1897). 

Violation  of  mining  rule. — "It  appears  to  me  that  to  disoV'oy  a  special  rule, 
such  as  that  here  in  question,  is  serious  and  willful  misconduct  in  the  sense 
of  the  statute ;  and  it  does  not  seem  to  me  to  be  any  excuse,  or  to  make  any 
difference,  that,  the  rule  being  duly  published,  the  particular  miner  does  not 
choose  to  read  it,  or  make  himself  acquainted  with  its  terms.  I  should  per- 
haps add  that  I  do  not  myself  see  how  it  could  be  any  excuse,  or  make  any 
difference,  although  the  rule  should  have  been  commonly  disobeyed,  or  even 
disobeyed  with  the  knowledge  of  the  employers."  Lord  Kyllachy,  in  Dobson 
V.  United  Collieries,  Ltd.  (1906)  8  F.  241,  Ct.  of  Sess.  Lord  McLaren  has  said: 
"I  think  it  is  now  determined  that  the  infraction  of  a  mining  rule  amounts 
to  serious  and  willful  misconduct  where  it  is  the  cause  of  the  accident.  But 
I  think  there  may  be  an  exception  to  that  principle  where  the  workman  is 
either  excusably  ignorant  of  the  mining  rule,  or  where  he  breaks  the  rule 
through  some  paramount  necessity."  Id.  Where,  in  order  to  make  his  work 
easier,  a  miner  took  away  the  props  which  supported  a  dangerous  part  of  the 
roof  of  a  cut,  replacing  them  with  other  supports,  which,  being  insuflicient, 
allowed  a  stone  to  fall  and  injure  him,  although  his  action  was  contrary  to 
statutory  rules,  it  was  not  serious  and  willful  misconduct.    RumboU  v.  Nun- 


§  141  workmen's  compensation  560 

nery  Colliery  Co.,  Ltd.  (1899)  1  W.  C.  C.  29,  C.  A.  (Act  of  1897).  Where,  while 
the  fireman  of  a  squad  of  blasters  was  absent,  the  foreman  of  the  squad, 
upon  the  charge  being  made  ready,  tried  to  render  the  detonator  harmless 
by  taking  out  the  wires,  and  was  killed  in  the  effort,  his  action  was  not  con- 
trary to  the  Coal  Mines  Act,  and  was  not  serious  and  willful  misconduct. 
Queen  v.  Baird  &  Co.,  Ltd.  (1904)  6  F.  271,  Ct.  of  Sess.  (Act  of  1897).  Recov- 
ery was  barred  by  serious  and  willful  misconduct  where  a  miner  was  injured 
by  an  explosion  of  a  shot  he  had  lighted,  and  to  which,  upon  the  cartridge 
not  exploding,  he  i-eturned  in  three  minutes,  whereas  a  special  rule  forbade 
his  returning  under  such  circumstances  within  thirty  minutes  (Waddell  v. 
Coltness  Iron  Co.,  Ltd.  [1913]  6  B.  W.  C.  C.  306,  Ct.  of  Sess.) ;  where  a  miner 
disregarded  a  special  rule  forbidding  miners  to  have  a  naked  light  in  a  posi- 
tion where  it  could  set  off  explosives,  and  was  injured  by  an  explosion  result- 
ing as  a  consequence  of  his  placing  a  naked  light  on  the  ground  near  some 
powder  charges  he  was  counting  (Donnachie  v.  United  Collieries,  Ltd.  [1910] 
S.  C.  503,  Ct.  of  Sess.) ;  where,  in  breach  of  a  special  rule,  a  miner  opened  the 
gate  between  the  seam  and  the  shaft,  without  determining  whether  the  cage 
he  had  called  for  had  arrived  or  not,  and,  the  cage  not  being  there,  he  and 
the  hutch  he  was  pushing  were  precipitated  down  the  shaft,  and  he  seriously 
injured  (George  v.  Glasgow  Coal  Co.,  Ltd.  [1910]  2  B.  W.  C.  C.  125,  H.  L.,  and 
[1909]  1  B.  W.  C.  C.  239,  Ct.  of  Sess.) ;  wijere  there  was  a  statutory  rule  for- 
bidding miners  to  have  a  naked  lamp  in  their  caps  while  carrying  cartridges 
which  were  not  inclosed,  and  a  miner  was  fatally  injured  by  an  explosion 
which  resulted  from  his  breaking  the  rule  (Dailly  v.  Watson,  Ltd.  [1900]  2 
F.  1044,  Ct.  of  Sess.  [Act  of  1897]) ;  and  where  a  miner,  who  was  "holing," 
broke  a  statutory  rule  in  neglecting  to  prop  the  roof,  and  was  killed  by  head 
coal  falling  upon  him  (O'Hara  v.  Cadzow  Coal  Co.,  Ltd.  [1903]  5  F.  439,  Ct. 
of  Sess.  [Act  of  1897]). 

Disobedience  of  orders. — Where  there  is  a  deliberate  and  unmistakable  act 
of  disobedience  to  an  express  order,  or  where  there  is  a  deliberate  breach  of  a 
law  or  rule,  which  is  framed  in  the  interests  of  the  workingman,  it  will  be 
held  that  such  a  breach  or  such  disobedience  amounts  to  serious  misconduct. 
Head  v.  Head  Drilling  Co.  (Fidelity  &  Deposit  Co.  v.  Industrial  Ace.  Com- 
mission) 2  Cal.  I.  A.  C.  Dec.  973 ;  171  Cal.  728,  154  Pac.  834.  Where  a  miner 
deliberately  and  against  the  known  and  enforced  orders  of  the  employer  takes 
a  dangerous  position  on  the  bucket  ascending  from  the  mine,  from  which  he 
falls  and  is  killed,  this  is  willful  misconduct,  and  the  employer  is  not  liable 
for  any  death  benefit.  Lopez  v.  Harvard  Mine,  2  Cal.  I.  A.  C.  Dec.  593.  Evi- 
dence that  where  a  ship  had  gone  upon  the  rocks  and  was  in  imminent  dan- 
ger of  going  to  pieces,  and  the  order  was  given  by  the  captain  to  desert  the 
vessel,  and  the  first  mate,  knowing  of  such  order,  for  some  reason  which  can- 
not  be  ascertained,  remained  on  the  ship,  and,  failing  to  reach  his  boats,  was 
lost  in  the  wreck  when  the  ship  broke  up  a  few  minutes  later,  it  being  im- 
possible to  obtain  evidence  as  to  why  he  failed  to  leave  the  ship  with  the  other 


561  DEFENSES  TO   COMPENSATION   CLAIMS  §   141 

members  of  the  crew,  such  evidence  is  insufficient  to  establish  the  defense  of 
willful  misconduct  on  the  part  of  such  officer.  Bolger  v.  North  Pacific  Steam- 
ship Co.,  2  Cal.  I.  A.  C.  Dec.  268.  Where  an  employe  upon  a  building  under 
construction  had  fastened  a  hod  of  mortar  to  the  bucket  used  to  hoist  it,  and 
his  employer,  seeing  it,  had  called  down  to  him  not  to  have  the  bucket  sent 
up,  but  that  other  workmen  standing  near  by  shouted  that  it  was  all  right, 
and  for  the  driver  of  the  horse  to  go  ahead,  and  the  workman  was  injured 
by  the  hod  falling  from  the  bucket  in  being  taken  out  at  the  upper  story,  such 
facts  are  insufficient  to  establish  willful  misconduct  of  the  injured  employe 
contributing  to  his  accident.  The  accident  was  in  fact  due  to  others  causing 
the  bucket  to  be  hoisted,  directly  assented  to  by  the  employer  by  failing  to 
stop  them.  Collins  v.  Bodin,  2  Cal.  I.  A.  C.  Dec.  153.  Connecticut.  In  San- 
ford  V.  Connecticut  Co.,  1  Conn.  Comp.  Dec.  485,  where,  after  deliberate  dis- 
regard and  disobedience  of  several  safety  rules  he  knew  and  understood,  de- 
cedent conductor  was  fatally  injured  in  picking  up  a  live  wire  from  the  high- 
way without  using  any  insulation,  contrary  to  the  rules  and  the  direct  cau- 
tioning of  his  motorman,  it  was  held  he  was  guilty  of  serious  and  willful  mis- 
conduct. Massachusetts.  An  employg  was  engaged  to  do  general  cleaning, 
painting,  and  whitewashing,  and  some  of  his  work,  having  to  be  done  near 
machinery  and  shafting  in  motion,  was  dangerous.  He  had  been  directed  to 
do  this  work  during  the  noon  hours,  when  the  machinery  was  stopped.  On 
the  day  of  the  injury  the  superintendent  told  the  employ^  about  11:30  a.  m. 
that  the  work  on  a  wall  near  the  moving  shafting  should  be  done  at  noon, 
when  the  machinery  was  stopped.  The  employ^  started  to  work  at  this  place 
about  five  minutes  later,  expecting  to  finish  the  job  when  the  machinery  was 
stopped.  His  clothing  was  caught  by  a  projection  from  the  collar  of  the 
shafting,  and  he  was  fatally  injured.  The  insurer  pleaded  serious  and  Avill- 
ful  misconduct  on  the  part  of  the  employe  in  failing  to  obey  the  instructions 
of  the  superintendent,  but  the  Committee  of  Arbitration  held  that  the  widow 
was  entitled  to  compensation,  the  injury  not  having  occurred  by  reason  of 
the  employe's  serious  and  willful  misconduct.  Nickerson  v.  New  England 
Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  379  (decision  of  Com.  of  Arb.,  af- 
firmed by  Indus.  Ace.  Bd.,  also  by  Sup.  Jud.  Ct,  218  Mass.  158,  105  N.  E. 
604,  Ann.  Cas.  1916A,  790).  England.  Lord  Trayner  has  said:  "I  cannot  fig- 
ure anything  more  serious  or  willful  than  positive  and  intentional  disobe- 
dience to  a  strict  and  positive  order."  Powell  v.  Lanarkshire  Steel  Co.,  Ltd. 
(1904)  6  F.  1039,  Ct.  of  Sess.  (Act  of  1897).  Where  a  carpenter  tried  to  put 
back  a  belt  which  had  slipped  off  the  wheel  of  the  grindstone  upon  which  he 
was  sharpening  a  tool,  although  he  had  had  orders  not  to  touch  the  machinery, 
his  misconduct  was  not  willful.  Whitehead  v.  Reader  (1901)  3  W,  O.  C.  40,  C. 
A.  Where  a  miner,  following  the  frequent  practice  of  his  fellow  workmen, 
although  it  was  dangerous  and  against  orders,  ascended  to  a  higher  level  in 
the  cage  of  a  sump  shaft  which  was  used  for  raising  ore,  and  was  killed  while 
so  doing,  his  action  was  not  serious  and  willful  misconduct.  Douglas  v.  Unit- 
HoN.CoMP. — 36 


§  141  workmen's  compensation  '  562 

misconduct,  there  have  generally  been  extenuating  circumstances 
leading  up  to  the  neglect.^^  It  is  not  serious  misconduct  to  break  a 
rule,  violations  of  which  have  been  tacitly  permitted  by  the  em- 
ployer,-^ or  to  break  a  rule  not  properly  posted  or  brought  to  the 

ed  Mineral  Mining  Co.,  Ltd.  (1900)  2  W.  C.  C.  15,  C.  A.  Wliere  a  boy,  who  had 
been  forbidden  to  put  his  hand  across  the  saw  upon  which  he  was  cutting 
screws,  was  injured  by  leaning  across  it  while  in  motion,  in  an  effort  to  pick 
up  a  screw  which  had  fallen,  he  was  guilty  of  negligence,  but  not  serious  and 
willful  misconduct.  Reeks  v.  Kynoch,  Ltd.  (1902)  4  B.  W.  C.  C.  14,  C.  A.  It 
was  serious  and  willful  misconduct  where  a  girl,  working  on  a  threshing  ma- 
chine, tried  to  step  across  the  machine  so  that  she  might  talk  to  a  fellow 
servant,  when  she  had  been  warned  that  to  do  so  was  dangerous  (Callaghan 
V.  Maxwell  [1900]  2  F.  420,  Ct.  of  Sess.  [Act  of  1897]) ;  where  a  collier  was 
ordered  to  bore  from  above  into  the  top  hole  of  a  seam  for  the  purpose  of 
drawing  off  the  gas,  and  although  forbidden  to  enter  the  top  hole,  which  was 
marked  off  as  dangerous,  nevertheless  did  so,  seeking  to  see  if  the  drill  was 
working  properly,  and  was  suffocated  (Harding  v.  Brynddu  Colliery  Co.,  Ltd. 
[1911]  4  B.  W.  C.  C.  2G9,  C.  A.) ;  where  some  boys  employed  in  a  steel  works, 
who  had  been  continually  warned  not  to  go  near  certain  wagons  which  were 
standing  on  a  steep  incline,  did  so  (Powell  v.  Lanarkshire  Steel  Co.,  Ltd., 
supra) ;  and  where  a  workman  was  killed  while  operating  a  circular  saw 
without  any  guard,  although  he  had  been  ordered  several  times  to  use  one, 
because  it  was  dangerous  not  to  (Brooker  v.  Warren  [1908]  9  W.  C.  C.  26, 
C.  A.  [Act  of  1897]).  In  the  last-named  case  Collins,  M.  R.,  said:  "Pie  was 
guilty  of  misconduct  in  deliberately  and  intentionally  refusing  to  obey  the 
order  to  use  the  guard,  and  the  misconduct  was  willful,  and  that  misconduct 
was  serious,  because  it  produced  a  condition  of  danger  to  himself  and  others. 
He  was  therefore  guilty  of  serious  and  willful  misconduct." 

21  United  Collieries,  Ltd.,  v.  McGhie  (1904)  6  F.  810. 

2  2  It  must  be  shown  that  orders  given  by  the  employer  were  accompanied  by 
such  disciplinary  measures  as  were  necessary  to  entitle  them  to  respect.  Where 
discipline  is  unreasonably  lax  by  the  employer,  and  his  orders  are  habitual- 
ly disregarded  by  his  employes,  disobedience  of  such  orders  will  not  constitute 
willful  misconduct.  Collins  v.  Bodin,  2  Cal.  I.  A.  C.  Dec.  153.  Where  safety 
instructions  are  given  merely  as  cautions,  and  repeated  violations  thereof  are 
known  and  permitted  without  penalty,  disregard  of  such  cautions  does  not 
constitute  such  opposition  to  the  employer's  will  as  to  amount  to  willful  mis- 
conduct. Haffemayer  v.  United  Keanograph  Film  Mfg.  Co.,  1  Cal.  I.  A.  C. 
Dec.  620.  To  constitute  willful  misconduct  there  must  be  a  violation  of  a 
rule  imposed  by  the  employer  for  the  protection  of  an  employe,  which  is  dili- 
gently enforced.  Where  such  rule  is  not  enforced,  its  disobedience  being  no- 
torious and  allowed  to  continue  without  any  penalty  being  imposed,  a  vio- 


563  DEFENSES  TO  COMPENSATION  CLAIMS  §  141 

lation  of  it  which  results  in  injury  does  not  constitute  willful  misconduct. 
Cleveland  v.  Hastings,  2  Cal.  I.  A.  O.  Dec.  15.  Lord  Atkinson  said:  "I  agree 
that  an  employer  should  not  be  permitted  to  shield  himself  from  liability  by 
merely  posting  up  a  notice  prohibiting  some  practice  in  his  works,  where  he 
has  tacitly  permitted  the  practice  to  be  followed,  'winked,'  as  it  is  called,  at 
the  disregard  of  his  orders."  In  Barnes  v.  Nunnery  Colliery  Co.,  Ltd.  (1912) 
5  B.  W.  C.  C.  199. 

It  was  not  serious  and  willful  misconduct  on  account  of  the  employer's  ac- 
quiescence where  the  exhibiting  of  a  "Gila  monster"  by  a  "spieler"  to  attract 
a  crowd  was  not  positively  forbidden,  and  any  objection  was  not  because  he 
or  his  employer  believed  the  bite  of  the  reptile  to  be  dangerous,  and  the  con- 
tinuation of  such  exhibition  .  was  tacitly  acquiesced  in  (Merritt  v.  Clark  & 
Snow,  Inc.,  2  Cal.  I.  A.  C.  Dec.  983) ;  where  an  employe,  with  a  previously 
excellent  reputation  for  obedience  to  instructions  given  by  his  superiors,  was 
injured  while  emptying  a  bin,  because  of  his  failure  to  place  a  proper  grating 
beneath  it,  and  the  evidence  showed  that  the  employes  had  been  in  the  habit 
of  emptying  the  bin  without  using  such  grating,  and  that  they  were  not 
cautioned  or  reprimanded  or  discharged  on  accovmt  of  this  neglect  (Cruz  v. 
Cal.  Portland  Cement  Co.,  2  Cal.  I.  A.  C.  Dec.  155);  where  a  brakeman  on 
a  railroad  train  was  injured  as  a  result  of  using  his  foot  to  aid  in  making  a 
coupling,  which  was  a  slightly  dangerous  act  and  in  violation  of  instructions, 
neither  peremptory,  nor  specific,  nor  vigorously  enforced,  and  often  violated 
without  protest  or  discipline  (Conners  v.  Sugar  Pine  Ry.  Co.,  2  Cal.  I.  A.  C. 
Dec.  S79) ;  where  the  injury  to  a  girl,  caused  by  the  explosion  of  a  bottle  into 
which  she  was  bottling  mineral  waters,  might  have  been  prevented  by  the 
wearing  of  gauntlets,  but  the  regulation  requiring  them  was  not  strictly  en- 
forced (Casey  v.  Humphries  [1913]  6  B.  W.  C.  C.  520,  C.  A.) ;  or  where,  there 
being  a  sump  shaft  in  a  mine  which  was  used  for  raising  ore,  in  which  it 
was  dangerous  and  against  orders  for  miners  to  ascend  or  descend,  although 
they  habitually  did  so  when  no  officials  were  watching,  a  miner  was  killed 
while  he  was  ascending  in  a  cage  in  the  shaft  (Douglas  v.  United  Mineral 
Mining  Co.,  Ltd.  [1900]  2  W.  C.  C.  15,  C.  A.  [Act  of  1897]). 

In  Grandfield  v.  Bradley  Smith  Co.,  1  Conn.  Comp.  Dec.  479,  where  there 
was  a  rule  in  a  candy  factory  requiring  girls  to  get  empty  boxes  from  the 
boy  who  supplied  their  table,  and  forbidding  them  to  get  boxes  from  any 
other  boy,  which  rule  was,  however,  not  uniformly  enforced,  and  the  viola- 
tion of  which  was  attended  with  no  danger,  it  was  held  a  girl  injured  while 
violating  the  rule,  by  the  act  of  the  boy  in  resisting  an  effort  to  keep  her  from 
getting  a  box,  was  not  guilty  of  serious  and  willful  misconduct.  In  Forbes 
V.  Brown,  1  Conn.  Comp.  Dec.  202,  where  the  deceased,  engaged  in  "scoring" 
logs  in  the  woods,  and  working  in  sight  of  his  employer,  diverted  from  the 
usual  and  proper  method  of  standing  on  the  log,  and  was  scoring  while  stand- 
ing on  the  ground  beside  the  log,  and  was  warned  by  his  employer  to  stand 
on  the  log,  but  did  not,  and  the  employer  gave  no  further  suggestions  or  or- 


§  141  workmen's  compensation  564 

employe's  attention.^'  Ignorance  of  a  statutory  rule  which  has 
been  properly  posted  is  no  excuse.^*  There  is  a  difference  of  opin- 
ion as  to  whether  violation  of  a  rule  is  prima  facie  serious  and  will- 
ful." 

ders,  and  the  employ§  five  minutes  later  was  struck  on  the  leg  by  the  ax,  he 
was  not  guilty  of  serious  and  willful  misconduct. 

23  Lord  President  said,  in  Dobson  v.  United  Collieries,  Ltd.  (1906)  8  F.  246 : 
"I  think  it  goes  without  saying  that  a  rule  not  properly  posted  is  really  no 
rule  at  all;  it  is  merely  a  piece  of  paper  in  the  employer's  pocket,  so  to  speak, 
and  no  question  of  breach  can  arise  until  the  rule  is  posted." 

Where  a  large  building  contained  two  widely  separated  freight  elevators,  and 
the  employer  of  young  errand  boys  made  and  enforced  a  rule  that  his  boys 
should  not  operate  "the  elevator"  by  themselves,  but  his  rule  did  not  refer 
specifically  to  operating  the  elevator  more  distant  from  his  loft,  which  was 
frequently  operated  by  the  boys,  though  without  the  knowledge  of  the  em- 
ployer, and  the  fact  that  the  rule  was  for  their  protection  was  not  made  plain 
to  them  in  a  manner  suited  to  their  intelligence,  and  the  risk  of  injury  or 
death  involved  was  not  apparent  enough  to  make  the  act  of  more  than  ordi- 
nary negligence,  and  one  of  the  boys,  while  attempting  to  operate  the  more 
distant  elevator,  though  aware  of  his  employer's  rule,  in  some  manner  fell 
to  the  bottom  of  the  elevator  shaft  and  was  killed,  the  Commission  held  he 
was  not  guilty  of  willful  misconduct,  as  having  deliberately  violated  a  rule 
made  for  his  own  protection.  Cassell  v.  Simon  Millinery  Co.,  2  Cal.  I.  A.  C 
Dec.  1071.  Where  an  employe  is  killed  by  electric  shock  from  climbing  upon 
a  crane  within  close  proximity  to  power  lines,  and  it  is  shown  that  the  em- 
ployg  had  been  cautioned  not  to  go  upon  such  part  of  the  crane  without  shut- 
ting off  the  power,  but  such  caution  did  not  amount  to  any  regularly  enforced 
safety  rule  or  regulation,  and  it  appears  in  evidence  that  the  employes  were 

24  Where  a  miner  was  injured  by  an  explosion  caused  by  his  carrying  a 
naked  light  in  his  cap,  contrary  to  a  statutory  rule,  at  the  same  time  as  he 
was  carrying  an  uninclosed  cartridge,  his  action  was  serious  and  willful  mis- 
conduct, although  he  had  no  knowledge  of  the  regulation,  and  was  following 
the  usual  practice.  Dobson  v.  United  Collieries,  Ltd.  (1906)  8  F.  241,  Ct.  of 
Sess. 

26  Lord  Loreburn  has  said :  "In  my  opinion  it  is  not  the  province  of  the 
court  to  lay  down  that  a  breach  of  a  rule  is  prima  facie  evidence  of  serious 
and  willful  misconduct.  That  is  a  question  purely  of  fact,  to  be  determined 
by  the  arbitrator  as  such."  George  v.  Glasgow  Coal  Co.,  Ltd.  (1910)  2  B.  W. 
C.  C.  129.  But  Lord  Trayner  expressed  the  opinion  that  prima  facie  any 
breach  of  a  rule  is  willful  and  serious.  United  Collieries,  Ltd.,  v.  McGhie 
(1904)  6  F.  808. 


i 


565  DEFENSES  TO  COMPENSATION  CLAIMS  §  142 

§  142.    Drunkenness 

Whether  drunkenness  is  willful  misconduct  depends  on  the  facts 
of  the  particular  case.^^  It  is  quite  possible  for  a  person  to  be  in 
an  intoxicated  condition  which  proximately  caused  the  accident, 

accustomed  without  rebuke  to  make  repairs  liglit  in  character,  near  the  said 
power  wires,  without  turning  off  the  power,  that  no  danger  signals  had  been 
erected  or  warning  notices  posted,  that  work  had  previously  been  done  upon 
this  machine  without  throwing  the  switch,  and  that  no  one  had  been  repri- 
manded, suspended,  or  discharged  for  failure  to  do  so,  the  evidence  is  insuffi- 
cient to  establish  that  the  death  of  the  employ^  was  caused  by  willful  mis- 
conduct. Freid  v.  Smith  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  117.  Where  a  spe- 
cial rule  forbade  miners,  who  had  lighted  trains  to  fire  shots,  to  return  to 
the  train  sooner  than  thirty  minutes  after,  but  such  rule  was  not  properly 
posted  and  was  not  obeyed  very  generally,  and  a  miner  was  injured  when  he 
returned  within  six  minutes  to  see  why  there  had  been  no  explosion,  his  action 
cannot  be  said  to  be  serious  and  willful  misconduct.  McNicol  v.  Speirs,  Gibb 
&  Co.  (1899)  1  F.  604,  Ct.  of  Sess.  (Act  of  1S97).  Where  a  workman,  seeking 
something  for  his  work,  mounted  a  furnace  platform  on  a  hoist  which  it  was 
dangerous  and  against  the  rules  to  use,  but  proof  that  he  knew  of  the  reg- 
ulation was  lacking,  it  was  held  there  was  evidence  to  justify  a  finding  that 
his  action  was  not  serious  and  willful  misconduct.  Logue  v.  FuUerton,  Hod- 
gart  &  Barclay  (1901)  3  F.  1006,  Ct.  of  Sess.  (Act  of  1897). 

26  (St.  1911,  §  2394 — 4)  Nekoosa-Edwards  Paper  Co.  v.  Industrial  Commission, 
154  Wis.  105,  141  N.  W.  1013,  L.  R.  A.  1916A,  848,  Ann.  Gas.  1915B,  995. 
Where  an  indulgence  in  intoxicants  results  in  the  impairment  of  the  work- 
man's faculties,  which  he  would  ordinarily  use  to  safeguard  himself  against 
danger  when  he  is  working  with  dangerous  appliances  or  necessarily  work- 
ing in  a  dangerous  place,  and  it  is  plain  that  the  impairment  of  those  faculties 
as  the  result  of  intoxication  is  the  major  contributing  cause  of  the  accident, 
such  intoxication  will  be  held  to  be  the  proximate  cause  of  the  accident  and 
compensation  will  be  denied.  Arnold  v.  Benjamin,  1  Cal.  I.  A.  C.  Dec.  412. 
Compensation  cannot  be  collected  for  an  injury  sustained  on  account  of  the 
intoxication  of  the  injured  employe.  (Code  Supp.  1913,  §  2477mla)  Op.  Sp. 
Counsel  to  Iowa  Indus.  Com.  (1915)  p.  24.  Lord  McLaren  said  in  McGroarty 
V.  Brown  &  Co.,  Ltd.  (1906)  8  F.  809,  Ct.  of  Sess.  (Act  of  1897) :  "Of  course 
there  are  degrees  of  intoxication,  but  in  this  case  the  appellant  was  dismiss- 
ed for  being  drunk  and  unfit  for  work.  I  cannot  doubt  that  drunkenness  to 
the  extent  of  unfitting  a  man  for  his  work  is  'serious  and  willful  misconduct,' 
and  disentitles  the  applicant  to  compensation  under  the  Act  of  Parliament." 

Because  of  the  extraordinary  hazard  of  the  occupation  of  an  electric  line- 
man and  his  need  of  full  possession  of  his  faculties,  the  California  Commiy- 


§  142  workmen's  compensation  566 

which  in  turn  proximately  caused  the  death,  and  yet  not  be  guilty 
of  willful  misconduct.    Though  the  drinking  of  intoxicating  liquors 

sion  will  deny  compensation  if  the  evidence  is  sufficient  to  show  any  consid- 
erable degree  of  intoxication.  Hewitt  v.  Red  River  Lumber  Co.,  2  Cal.  I.  A. 
C.  Dec.  2SG. 

In  Filliger  v.  Allan,  1  Conn.  Comp.  Dec.  35,  brought  by  the  widow  of  a  driv- 
er who  fell  from  his  wagon  and  broke  his  neck,  it  appeared  that  he  had  often 
been  drunk  before,  had  drunk  at  three  saloons  on  the  day  of  the  accident, 
and  had  admitted  drinking,  being  told  by  a  bystander  he  was  in  no  condition 
to  drive,  the  injury  was  due  to  the  employe's  serious  and  willful  misconduct. 
In  Boyington  v.  Stoddard,  1  Conn.  Comp.  Dec.  103,  where  the  deceased  work- 
man in  building  a  silo  used  no  staging,  but  stood  on  upright  staves  and  held 
himself  in  position  by  the  projecting  staves,  and  fell,  receiving  injuries  which 
caused  his  death,  there  being  evidence  that  he  had  drunk  a  quantity  of  whisky 
and  showed  evidence  of  intoxication,  such  as  inability  to  hit  a  nail,  dropping 
the  staves,  and  a  boisterous  and  argumentative  spirit,  his  death  was  held  due 
to  intoxication,  and  no  recovery  was  allowed.  In  Spencer  v.  Scanlon,  1  Conn. 
Comp.  Dec.  2S0,  where  it  appeared  that  a  painter,  who  fell  from  a  ladder 
while  painting,  sustaining  serious  injuries,  had  drunk  freely  of  liquor  the  night 
before,  and  showed  evidence  of  being  still  under  the  effects  of  it  next  morn- 
ing, a  fellow  workman  telling  his  employer  he  was  in  no  condition  to  work, 
and  the  doctor  who  was  called  testifying  he  observed  the  odor  of  alcohol  on 
claimant's  breath,  the  injury  was  held  due  to  intoxication,  precluding  recov- 
ery. In  Cooper  v.  New  Haven  Rigging  Co.,  1  Conn.  Comp.  Dec.  157,  where 
a  workman's  fall  was  caused  either  by  the  assault  of  his  foreman  or  by  his  at- 
tempting to  escape  a  real  or  supposed  assault,  which  was  caused  either  by 
the  workman's  serious  and  willful  misconduct  or  his  intoxication,  it  was  held 
his  injury  was  due  to  either  serious  and  willful  misconduct  or  intoxication, 
and  hence  was  not  compensable. 

The  employ^  was  intoxicated  when  he  started  to  drive,  and  when  he  drove 
his  horses  and  wagon  up  the  incline  into  the  barn;  he  was  so  intoxicated 
that  he  had  lost  his  normal  and  ordinary  senses  of  observation,  understand- 
ing, and  judgment,  so  that  he  could  not  appreciate  the  operation  of  ordinary 
causes  and  effects  with  which  he  was  fully  familiar,  and  his  injury  was  caus- 
ed by  this  intoxicated  condition.  He  had  voluntarily  drunk  the  liquor  to  the 
extent  of  causing  such  intoxication  while  on  duty,  and  was  therefore  not  en- 
titled to  compensation.  White  v.  Fidelity  &  Deposit  Co.  of  Md.,  2  Mass.  Wk. 
Comp.  Cases,  5G7  (decision  of  Com.  of  Arb.). 

"WTiere  an  employe,  shown  to  have  been  very  much  under  the  influence  of 
liquor,  was  seen  by  the  engineer  of  the  train  which  ran  over  him  sitting  on 
the  track  with  his  head  bent  over  and  paying  no  attention  to  the  whistle, 
which  was  sounded  continuously,  his  death  was  due  either  to  his  willful  in- 
tention to  cause  his  own  death,  or  to  his  intoxication,  and  therefore  his  widow 


567  DEFENSES  TO  COMPENSATION  CLAIMS  §  142 

is  willful,  in  the  sense  of  intentional,  the  mere  fact  of  drinking  is 
not  misconduct.-^  There  are  many  cases  where,  though  the  drink- 
ing is  intentional,  the  intoxication  is  not,  as  where  one,  by  reason 
of  fatigue,  hunger,  sickness,  or  some  abnormal  condition,  becomes 
intoxicated  in  consequence  of  imbibing  a  quantity  of  liquor  which 
ordinarily  would  not  so  affect  him.  To  be  available  as  a  defense, 
intoxication  must  contribute  to  the  happening  of  the  accident  or 
the  disability  resulting  therefrom.-^  Where  intoxication  is  pleaded 
as  a  defense,  the  burden  of  proof  rests  upon  the  defendant  to  af- 
firmatively establish  the  fact  of  such  intoxication.^''     Under  some 

could  not  recover.  Dowling  v.  New  York  Central  &  H.  R.  R.  R.  Co.,  The  Bul- 
letin, N.  Y.,  vol.  1,  No.  10,  p.  17. 

Where  a  laborer  on  a  ship  came  to  his  work  drunk,  and  was  ordered  home, 
and  was  later  found  injured  at  the  foot  of  a  ladder,  he  was  guilty  of  serious 
and  willful  misconduct.     McGroarty  v.  Brown  &  Co.,  Ltd.,  supra. 

27  Nekoosa-Edwards  Paper  Co.  v.  Industrial  Commission,  supra. 
Though  an  employe  is  to  some  extent  intoxicated,  and  is  injured  while  In 

the  course  of  his  employment,  he  is  entitled  to  compensation.  Hanson  v.  Com- 
mercial Sash  Door  Co.,  Bulletin  No.  1,  111.,  p.  30. 

28  Where  an  employe  sustained  a  fracture  of  the  skull  by  falling  from  a 
wagon,  caused  by  the  kingbolt  of  the  wagon  bending  and  allowing  the  front 
wheels  to  pull  from  under  it,  and  it  was  shown  that,  though  the  employ§ 
was  intoxicated  at  the  time  of  said  accident,  his  intoxication  was  in  no  wise 
connected  with  the  cause  of  the  accident  or  fall,  the  employer  is  not  relieved 
from  liability  for  such  accident  because  of  such  intoxication.  Summerville 
V.  De  Bella  &  Co.,  2  Cal.  I.  A.  C.  Dec.  122. 

29  Hewitt  V.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  2S6;  Potts  v.  Pa- 
cific Stevedoring  &  Ballasting  Co.,  1  Cal.  I.  A.  C.  Dec.  630 ;  Phillips  v.  Chans- 
lor-Canfield  Midway  Oil  Co.,  1  Cal.  I.  A.  C.  Dec.  580;  Ruprecht  v.  Red  River 
Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  864. 

Sufficiency  of  proof  of  intoxication. — The  Commission  does  not  accept  as 
conclusive  of  intoxication  the  mere  evidence  of  the  odor  of  alcohol  upon  the 
breath  of  the  injured  man  and  testimony  that  he  had  taken  three  or  four 
drinks  of  beer  within  six  hours  prior  to  the  accident.  Potts  v.  Pacific  Stevedor- 
ing &  Ballasting  Co.,  supra.  Where  the  defense  of  intoxication  is  not  sub- 
stantiated by  direct  evidence,  but  is  only  a  surmise,  the  defendants  have  not 
discharged  the  burden  upon  them,  and  the  defense  is  not  established.  Phil- 
lips V.  Chanslor-Canfield  Midway  Oil  Co.,  supra.  The  finding  of  a  bottle  re- 
sembling a  whisky  bottle,  containing  a  fluid  that  looks  like  whisky,  upon  the 


§  142  workmen's  compensation  568 

Acts,  it  must  be  the  sole  cause,  and  not  merely  the  contributing 
cause,  of  the  injury.'" 

Drunkenness  by  an  applicant  during  his  period  of  disability  is 
not  a  defense  to  his  application  for  compensation,  unless  it  ag- 
gravated or  prolonged  his  disability,  and  then  only  to  that  ex- 
tent.'^ 

§  143.     Burden  of  proof — Question  of  fact 

The  burden  of  proof  is  upon  the  defendant  affirmatively  to  es- 
tablish that  the  accident  and  injury  were  caused  by  the  willful  mis- 
conduct of  the  injured  employe,'-  and  this  burden  is  not  met  where 

body  of  an  employ^  killed  in  an  accident,  and  tbe  statement  of  a  fellow  em- 
ploye that  another  employtS  had  told  him  he  had  been  drinking  with  the  de- 
ceased the  morning  of  the  accident,  does  not  furnish  evidence  sufficient  to 
establish  the  alleged  intoxication  of  the  deceased.  Hewitt  v.  Red  River  Lum- 
ber Co.,  supra.  Where  the  insurer  claimed  that  the  injury  which  caused 
employe's  death  was  due  to  his  own  serious  and  willful  misconduct,  to  wit, 
intoxication,  but  the  evidence  failed  to  maintain  his  claim,  and  showed  that 
the  deceased  was  in  a  normal  condition  and  well  able  to  perform  his  customary 
work,  the  dependent  mother  was  awarded  compensation.  Shea  v.  United 
States  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  481  (decision  of  Com.  of  Arb.). 

3  0  American  Ice  Co.  v.  Fitzhugh  (Md.)  97  Atl.  999. 

31  West  v.  City  of  Pasadena,  1  Cal.  I.  A.  C.  Dec.  274. 

32  Kraljlvich  v.  Yellow  Aster  Mining  &  Milling  Co.,  1  Cal.  I.  A.  C.  Dec.  554 ; 
Ruprecht  v.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  864;  Maffia  v.  Aquili- 
no,  3  Cal.  I.  A.  C.  Dec.  15.  The  burden  is  upon  the  emploj'er  to  show  that  the 
injury  was  attributable  to  the  workman's  serious  and  willful  misconduct. 
Logue  V.  Fullerton,  Hodgart  &  Barclay  (1901)  3  F.  1010. 

Proof  of  intoxication,  see  §  142,  ante. 

Sufficiency  of  proof. — Where  the  deceased  employ^  was  subordinate  to  an- 
other employ^,  who  was  in  command  of  and  was  running  a  launch  in  a 
manner  violating  the  rules  of  the  employer,  by  reason  of  which  violation  it 
is  alleged  the  subordinate  employe  was  killed,  the  burden  of  proof  resting 
upon  the  employer  to  show  ipso  facto  willful  misconduct  on  the  part  of  the 
subordinate  employ^  was  not  sustained.  Rupreclit  v.  Red  River  Lumber 
Co.,  2  Cal.  I.  A.  C.  Dec.  864.  In  Sirica  v.  Scovill  Mfg.  Co.,  1  Conn.  Comp. 
Dec,  171,  where  the  employer  showed  that  an  employ^,  whose  hand  was 
crushed  in  an  automatic  punch  while  he  was  oiling  it,  could  easily  have 
stopped  the  machine,  but  the  evidence  was  conflicting  as  to  whether  he  had 


569  DEFENSES  TO   COMPENSATION   CLAIMS  §   144 

the  element  of  willfulness  is  left  in  doubt.^^  Where  injuries  result 
in  death,  the  evidence  to  establish  the  fact  of  such  willful  miscon- 
duct must  be  clear  and  unequivocal,  and  of  the  highest  character. 
It  must  approach  the  point  of  proof  beyond  a  reasonable  doubt,  for 
the  reason  that  the  workman's  lips  are  closed  by  death  and  he 
cannot  be  heard  in  his  own  defense.^* 

The  existence  of  willfulness  under  any  particular  circumstances 
is  usually  a  question  of  fact.^^ 

In  the  absence  of  substantial  evidence  to  the  contrary,  it  will  be 
presumed  that  an  employe's  death  was  not  occasioned  by  his  willful 
intention,  and  did  not  result  solely  from  intoxication  while  on 
duty.2® 

§  144.     Estoppel  and  res  judicata 

Where  an  employe,  injured  while  performing  work  in  the  usual 
line  of  his  employer's  business,  ignorantly  supposes  that  the  work 

been  instructed  to  do  so,  it  was  held  the  employer  had  not  discharged  the 
burden  of  proof  upon  him  to  sustain  his  charge  of  serious  and  willful  mis- 
conduct. In  Pelham  v.  Burstein,  1  Conn.  Comp.  Dec.  49,  it  was  held  that, 
while  the  use  of  kerosene  oil  in  kindling  or  replenishing  a  fire,  contrary  to 
clear  and  explicit  orders  of  the  employer,  if  established,  constitutes  serious 
and  willful  misconduct,  barring  compensation,  the  evidence  of  such  facts 
was  not  sufficient  in  this  case  to  justify  such  a  finding.  In  Keyser  v.  Gil- 
bert &  Bennett  Mfg.  Co.,  1  Conn.  Comp.  Dec.  636,  where,  though  conflicting 
stories  of  the  accident  were  told,  it  was  found  that  on  either  story  the  claim- 
ant had  jumped  from  a  moving  elevator,  falling  into  the  shaft,  and  had  vio- 
lated a  strict  rule  in  leaving  his  machine  to  get  supplies,  he  was  held  guilty 
of  serious  and  willful  misconduct. 

33  Hedges  v.  City  of  Los  Angeles,  1  Cal.  I.  A.  C.  Dee.  394. 

34  Freid  v.  Smith  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  117. 

3  5  In  re  Mckerson,  218  Mass.  15S,  105  N.  E.  604,  Ann.  Cas.  1916A,  790; 
Leishman  v.  Dixon,  3  B.  W.  C.  C.  560;  George  v.  Glasgow  Coal  Co.,  [1909] 
A.  C.  123 ;  Bist  v.  London  &  Southwestern  Ry.,  96  L.  T.  750. 

Whether  a  railroad  employe  was  guilty  of  intentional  and  willful  mis- 
conduct in  climbing  over  tlie  bumpers  of  a  train  to  which  a  live  engine  was 
attached  was  a  question  for  the  jury.  Gignac  v.  Studebaker  Corporation, 
186  Mich.  576,  152  N.  W.  1037. 

3  6  American  Ice  Co.  v.  Fitzhugh  (Md.)  97  Atl.  999. 


§  144  workmen's  compensation  570 

is  done  for  his  employer,  when  as  a  matter  of  fact  it  is  done  in 
pursuance  of  an  independent  contract  of  the  employe's  foreman 
with  the  understanding  of  the  employer,  the  employer  is  estopped 
to  deny  liability  for  compensation.^'^  A  corporation  will  be  estop- 
ped to  plead  the  defense  of  ultra  vires  against  liability  for  injuries 
to  its  employes.  A  laboring  man  ought  not  to  be  obliged  to  in- 
quire as  to  the  power  of  his  general  manager  to  direct  him  to  do 
different  kinds  of  work,  concerning  which  directions  are  given.^^ 
Payment  of  compensation  to  the  injured  workman  under  an  agree- 
ment does  not  estop  the  employer  from  claiming  that  the  work- 
man's subsequent  death  is  due  to  disease  and  not  to  the  accident.^^ 
The  ex  parte  action  of  an  employer  in  causing  judgment  to  be 
rendered  against  itself  does  not  affect  the  right  of  the  employe  to 
further  compensation.*" 

§  145.     Negligence,    contributory   negligence,   and   assumption   of 
risk 

At  common  law  the  master  was  not  liable  for  an  injury  to  his 
servant,  caused  by  the  negligence  of  a  fellow  servant,  on  the  ground 
that  the  servant  assumed  the  risk.  Under  the  Workmen's  Com- 
pensation Acts  the  master  assumes  all  risks  "incidental  to  the  em- 
ployment" ;  *^  that  is,  risks  incidental  to  or  connected  with  what  a 
workman  has  to  do  in  fulfilling  his  contract  of  service.*-  Such  risks 
may  be  either  ordinary  risks,  directly  connected  with  the  employ- 
ment, or  extraordinary  risks,  which,  owing  to  the  special  nature  of 

37  Summers  v.  National  Tent  &  Awning  Co.,  2  Cal.  I.  A.  C.  Dec.  968. 

3  8  English  V.  Cain,  2  Cal.  I.  A.  C.  Dec.  399. 

3  9  Cleverley  v.  Gaslight  &  Coke  Co.,  Ltd.  (1909)  1  B.  W.  C.  C.  S2,  H.  L. 

40  Bacik  v.  Solvay  Process  Co.,  Mich.  Wk,  Comp.  Cases  (1916)    48. 

4iHulley  V.  Moosbrugger,  87  N.  J.  La>v,  103,  93  All.  79. 

42  Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458 ;  Pope  v.  Hill's  Plymouth 
Co.  (1912)  102  L.  T.  R.  632,  3  B.  W.  C.  C.  339,  and  on  appeal  (1912)  105  L.  T. 
R.  678,  5  B.  W.  C.  C.  175. 


571  DEFENSES  TO  COMPENSATION  CLAIMS  §  145 

the  employment,  are  only  incidentally  connected  with  it.*^  Contrib- 
utory negligence  on  the  part  of  the  injured  person  is  not  ordinarily 
a  defense  to  a  claim  for  compensation,**  nor  is  it  any  defense  that 
the  employer  was  without  fault  and  not  negligent,  and  that  he 
could  not  by  the  exercise  of  reasonable  care  and  caution  have  pre- 
vented the  injury.*^ 

4  3  Bryant  v.  Fissell,  84  N.  J.  Law,  76,  86  Atl.  458. 

44Kaiuey  v.  McClaiu,  1  Cal.  I.  A.  C.  Dec.  57;  McCrystle  v.  Enos,  2  Cal. 
I.  A,  C.  Dec.  43.  Negligence  of  an  employe  contributing  to  his  injury  cannot 
be  relied  upon  by  the  employer  as  a  defense  to  the  claim  of  such  employe  for 
compensation.  Woodruff  v.  Peterson,  1  Cal.  I.  A.  C.  Dec.  516.  When  the 
scope  of  the  employment  is  once  ascertained,  any  injury  arising  out  of  and 
in  the  course  of  it  is  to  be  compensated  for,  although  the  employe  acted  in  a 
negligent  or  unusual  way.  Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  116, 
96  Atl.  368.  Under  the  Illinois  Act,  an  employe  is  entitled  to  compensation 
even  though  he  violates  orders  given  him,  or  for  injury  sustained  as  a  result 
of  negligence.  Reynolds  v.  Mound  City  Water  &  Light  Co.,  Bulletin  No.  1, 
111.,  p.  123.  Compensation  will  not  be  denied  because  of  contributory  neg- 
ligence of  the  employ^.  American  Ice  Co.  v.  Fitzhugh  (Md.)  97  Atl.  999. 
Where  it  appeared  that  there  were  more  than  four  employes  working  in  a 
common  employment,  the  defense  of  contributory  negligence  was  not  avail- 
able. (St.  1915,  §  2394—1  [3])  Sullivan  v.  Chicago,  M.  &  St.  P.  Ry.  Co.  (Wis.) 
158  N.  W.  321. 

4  5  Jensen  v.  Southern  Pac.  Co.,  215  N.  Y.  514,  109  N.  E.  600,  L.  R.  A.  1916A, 
403,  Ann.  Cas.  1916B,  276;  Sexton  v.  Newark  District  Telegraph  Co.,  84  N. 
J.  Law,  85,  86  Atl.  451;  Taylor  v.  Seabrook,  87  N.  J.  Law,  407,  94  Atl.  399. 
The  employe's  right  to  compensation  does  not  depend  on  negligence  of  the 
employer.  American  Ice  Co.  v.  I'itzhugh  (Md.)  97  Atl.  999 ;  In  re  Murphy 
(Mass.)  113  N.  E.  283.  It  is  no  defense  in  an  action  for  compensation  that 
the  accident  is  one  which  the  employer  could  not  by  the  exercise  of  reason- 
able care  and  caution  prevent,  as  compensation  is  payable  under  the  act 
without  regard  to  want  of  reasonable  care.  Johnston  v.  Mountain  Com- 
mercial Co.,  1  Cal.  I.  A.  C.  Dec.  100.  An  employer's  liability  to  an  injured 
employe  is  in  no  way  predicated  upon  any  fault  or  negligence  of  the  employer, 
or  control  of  the  cause  thereof  by  the  employer.  Douglas  v.  Kimbol,  1  Cal. 
I.  A,  C.  Dec.  543.  That  the  employer  was  in  no  way  negligent  or  at  fault 
is  not  open  to  him  as  a  defense.  McCrystle  v.  Enos,  2  Cal.  I.  A.  C.  Dec.  43. 
In  a  proceeding  before  the  Industrial  Commission  of  Ohio  under  the  Work- 
men's Compensation  Act  of  1913  it  is  not  necessary  for  the  claimant  to  prove 
that  his  injury  was  caused  by  the  negligence  of  his  employer.  It  is  sufficient 
to  prove  that  the  injury  for  which  compensation  is  claimed  occurred  while 


§  146  workmen's  compensation  572" 

§  146.     Defenses  under  federal  Act 

The  original  federal  Act  provided  that  no  compensation  shall  be 
paid  under  it  where  the  injury  is  due  to  the  negligence  or  miscon- 
duct of  the  employe  injured,  nor  unless  the  injury  shall  continue 
more  than  fifteen  days.  Negligence  under  this  act  involves  the 
idea  of  misconduct,  or  voluntary  and  unnecessary  exposure  to  ob- 
vious danger,  and  means  more  than  mere  inadvertence  or  error  of 
judgment,  under  circumstances  not  suggesting  danger.*®  Failure 
to  exercise  incessant  vigilance  in  avoiding  a  known  danger  is  not 
negligence.*^  Nor  is  one  chargeable  with  negligence  because  he  is 
slower  to  think  and  act  than  another,*^  or  because  in  a  sudden 
emergency,  and  seemingly  called  upon  to  act  at  once,  the  action 
taken  leads  to  an  injury  which  would  not  have  occurred  other- 
wise.*^   A  laborer  called  upon  to  perform  a  task  out  of  his  regular 

"in  the  course  of  employment."     Biddinger  v.  Champion  Iron  Co.,  vol.  1,  No. 
7,  Bui.  Ohio  Indus.  Com,  p.  70, 

40  In  re  Diesolman,  Op.  Sol.  Dept.  of  L.  401;  In  re  Strayer,  Op.  Sol.  Dopt. 
of  L.  446 ;  In  re  Taylor,  Op.  Sol.  Dept.  of  L.  411. 

Proof  of  negligence. — An  injury  to  a  printer's  back,  incurred  while  working 
a  hand  press,  was  not  due  to  negligence  merely  because  the  printer  had  con- 
tinued working  the  press,  although  it  worked  hard  and  required  extra  ex- 
ertion. In  re  Hutton,  Op.  Sol.  Dept.  of  L.  408.  The  employ^  was  engaged 
in  painting  machinery  while  same  was  in  motion.  No  orders  had  been  given 
to  the  contrary,  so  he  was  held  not  guilty  of  negligence  or  misconduct.  In 
re  Butler,  Op.  Sol.  Dept.  of  L.  502.  The  workman  was  employed  as  fire 
guard  in  the  Forest  Service,  occupying  quarters  furnished  by  the  govern- 
ment. In  attempting  to  shoot  a  rat  in  his  cabin  he  accidentally  shot  him- 
self. There  was  nothing  in  this  to  show  negligence  or  misconduct.  In  re 
McDonald,  Op.  Sol.  Dept.  of  L.  502. 

4  7  In  re  Reinburg,  Op.  Sol.  Dept.  of  L.  398.  A  laborer  engrossed  in  his 
work,  who  momentarily  forgets  a  known  danger,  is  not  guilty  of  negligence. 
In  re  Glass,  Op.  Sol.  Dept.  of  L.  393. 

48  No  man  can  be  assumed  to  be  indifferent  to  impending  and  apparent 
danger;  it  is  fair  to  assume  that  he  will  endeavor  to  avoid  it.  That  he  is 
slower  to  think  or  slower  to  act  than  another  is  not  negligence.  In  re  Mc- 
Fadden,  Op.  Sol.  Dept.  of  L.  396. 

49  In  re  Lyte,  Op.  Sol.  Dept.  of  L,  397. 


573  DEFENSES  TO  COMPENSATION  CLAIMS  §  146 

line  of  work  is  not  chargeable  with  negligence  because  he  adopts, 
through  ignorance,  a  method  dangerous  in  fact,  but  not  obviously 
dangerous  to  an  inexperienced  man.^°  Artisans  are  not  necessarily 
negligent  because,  as  they  become  proficient  and  dextrous,  they 
naturally  make  use  of  movements  more  or  less  mechanical  or  in- 
voluntary, which  might  be  regarded  as  negligent  if  it  were  reasona- 
ble to  expect  men  never  to  relax  their  vigilance  and  to  be  con- 
stantly on  guard. ^^ 

The  violation  of  a  positive  rule  or  instruction  directly  resulting 
in  injury  amounts  to  negligence  or  misconduct,^-  if  the  violation  is 
willful  or  wanton. ^2  But,  in  order  that  the  violation  of  a  rule  or 
regulation  shall  constitute  negligence  or  misconduct,  it  must  ap- 
pear that  reasonable  efforts  have  been  made  to  enforce  the  same.^* 
A  workman  called  upon  to  perform  a  task  out  of  his  regular  line 
of  employment  is  not  chargeable  with  negligence  for  violation  of 
a  rule  requiring  the  wearing  of  goggles  while  performing  this  class 
of  work.^^ 

5  0  In  re  Turner,  Op.  Sol.  Dept.  of  L.  406. 

01  In  re  Robinson,  Op.  Sol.  Dept.  of  L.  389. 

5  2  In  re  Pagliarulo,  Op.  Sol.  Dept.  of  L.  503. 

5  3  Willful  or  wanton  disobedience  of  orders  is  necessary  to  constitute  neg- 
ligence or  misconduct  under  the  federal  Act.  In  re  Horn,  Op.  Sol.  Dept.  of 
L.  504. 

5  4  In  re  Wilhelm,  Op.  Sol.  Dept.  of  L.  50S. 

5  5  In  re  Duer,  Op.  Sol.  Dept.  of  L.  507. 


1  I 


147  workmen's  compensation  574 


CHAPTER  VII 

COMPENSATION 

Section 

147-154.  Article  I. — Earnings  as  basis  of  compensation. 

155-166.  Article  II. — Disability  and  incapacity  for  work. 

167-174.  Article  III.— Death  benefits. 

175-192.  Article  IV. — Payment,  release,  and  related  matters. 

193-201.  Article  V. — Treatment  and  funeral  expense. 

193-200.  Division  I. — Expenses  of  medical,  surgical,  and  hospital  treat- 

ment. 
201.  Division  II. — Funeral  expenses. 


I 


ARTICLE  I 

EARNINGS  AS  BASIS  OF  COMPENSATION 

Section 

147.  What  constitutes  earnings. 

148.  Loss  of  earning  capacity. 

149.  Massachusetts. 

150.  Computation  of  earnings  in  general. 

151.  Determination  of  average  earnings. 

152.  Average  weekly  earnings. 

153.  Daily  wages. 

154.  Federal  Act. 

§  147.     What  constitutes  earnings 

"Earnings,"  which  by  these  Acts  are  made  the  basis  for  compu- 
tation of  the  amount  of  compensation,  include,  not  only  money, 
whether  received  as  regular  wages,  as  "extra  wages,"  ^  or  as  gra- 
tuities, called  "tips,"  ^  or  deducted  from  the  employe's  wages  for 

1  "Extra  wages,"  paid  the  steward  of  a  ship  over  and  above  his  ordinary 
wages,  if  his  work  on  the  trip  was  satisfactory,  and  profits  made  by  selling 
whisky,  were  part  of  his  remuneration.  Skailes  v.  Blue  Anchor  Line,  Ltd. 
(1911)  4  B.  W.  C.  C.  16,  C.  A. 

2  An  employ^  in  a  hotel  received  a  monthly  wage  of  $30  in  cash  and  meals 
to  the  value  of  $.30  more.     These  earnings  were  increased  by  tips  or  gratui- 


575  COMPENSATION  §   147 

equipment  or  material,^  but  also  anything  having  a  money  value, 

ties  from  the  guests  of  the  hotel,  an  average  monthly  income  of  $80,  be- 
cause of  the  polite  and  attentive  treatment  accorded  them  in  accordance 
with  the  conditions  of  his  employment.  The  insurer  claimed  that  compen- 
sation should  be  based  on  a  monthly  wage  of  $60,  but  it  was  held  that  tips  or 
gratuities  are  earnings,  and  that  the  employe's  compensation  should  be  based 
upon  all  his  earnings.  Hatchman  v.  New  England  Casualty  Co.,  2  Mass.  Wk. 
Comp.  Cases,  419  (decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.). 

Where  tips  which  amounted  to  from  10s.  to  12s.  a  week  were  received  by  a 
waiter  in  a  railway  dining  car,  such  tips  were  a  part  of  his  earnings.  Penn 
V.  Spiers  &  Pond,  Ltd.  (1909)  1  B.  W.  C.  C.  401,  C  A.  Tips  received  by  a 
carman  in  collecting  and  delivering  goods,  for  special  services  in  leaving  or 
getting  the  packages  at  some  place  other  than  the  entrance,  were  part  of 
his  earnings.    Knott  v.  Tingle,  Jacobs  &  Co.  (1911)  4  B.  W.  C.  C.  55,  C.  A. 

But  it  has  been  held  that  gratuities  received  by  employes  incident  to  the 
services  performed  by  them  are  not  to  be  treated  as  earnings  upon  which  to 
base  a  computation  of  compensation,  unless  the  contract  of  hire  is  made 
between  the  employer  and  employe  with  reference  to  such  gratuities  as  the 
whole,  or  a  part,  of  the  remuneration  to  the  employe  for  the  performance  of 
the  services  which  he  is  engaged  to  perform.  Reynolds  v.  Smith,  1  Cal.  I. 
A.  C.  Dec.  35. 

3  Where  a  miner  obtained  his  explosives  at  the  mine,  and  their  cost  was 
subtracted  from  his  wages,  the  sum  he  paid  for  them  was  a  part  of  his  earn- 
ings. McKee  v.  Stein  &  Co.,  Ltd.  (1910)  3  B.  W.  C.  C.  544,  Ct.  of  Sess.  Six- 
pence, which  was  kept  out  from  a  miner's  pay  each  week  to  pay  for  the  oil 
he  used  in  his  lamp,  was  part  of  his  earnings.  Houghton  v.  Sutton  Heath  & 
Lea  Green  Collieries  Co.,  Ltd.  (1901)  3  W.  C.  C.  173,  C.  A.  (Act  of  1897). 
Money  deducted  from  a  miner's  wages  for  things  furnished  him,  and  for 
other  equipment  expenses,  was  part  of  his  earnings.  Abram  Coal  Co.  v. 
Southern  (1903)  5  W.  C.  C.  125,  H.  L.  (Act  of  1897).  But  where  employers 
of  a  gang  working  in  ironstone  and  sand  paid  each  one  the  average  sum  earn- 
ed per  hour  by  the  gang,  keeping  out  the  average  cost  per  man  of  the  ex- 
plosives they  used,  the  cost  of  the  explosives  was  held  not  to  be  a  part  of 
the  earnings  of  a  member  of  the  gang.  Shipp  v.  Frodingham  Iron  &  Steel  Co., 
Ltd.  (1913)  6  B.  W.  C.  C.  1,  C.  A.  Buckley,  L.  J.,  said  in  the  last-named 
case:  "There  is  a  difference,  material  to  the  present  case,  between — first, 
earnings  and  a  right  in  the  employer  to  make  a  deduction  from  those  earn- 
ings; and,  secondly,  earnings  arrived  at  by  finding  a  sum  which  is  the  dif- 
ference between  two  sums.  The  present  case  is  one  of  the  latter  kind. 
*  *  *  There  is  no  deduction  as  between  the  employer  and  any  one  of  the 
employed.  The  deduction  is  made  as  between  the  employer  and  all  the  em- 
ployed in  the  aggregate.  The  remuneration  payable  as  between  any  one  of 
the  gang  and  the  employer  is  that  man's  proportionate  part  of  the  sum,  ar- 


§  147  workmen's  compensation  576 

such   as   board,   lodging,   and  washing,*    and   use   of   a   uniform.' 
They  do  not  include  payments  not  received  in  the  employment,® 

rived,  at  after  deduction  of  tbe  cost  of  the  powder   used,   not   by  himself 
alone,  but  by  himself  and  others." 

4  Where  the  injured  employe  received  in  wages  $15  a  week  and  his  board, 
worth  $3  a  week,  50  per  cent,  of  his  earnings  amounted  to  $9,  instead  of 
$7.50,  a  week.  (Wk.  Comp.  Act,  P.  L.  1911,  p.  134)  Baur  v.  Court  of  Com- 
mon Pleas,  88  N.  J.  Law,  128,  95  Atl.  627. 

The  value  of  the  use  of  bedroom,  kitchenette,  and  bath  by  a  hotel  man- 
ager, where  the  same  are  furnished  as  a  part  of  the  contract  of  employment, 
should  be  included  iu  the  computation  of  average  annual  earnings.  Fowler 
V.  Zellerbach-Levison  Co.,  1  Cal.  I.  A.  C.  Dec.  609. 

In  Wallack  v.  Sorensen,  1  Conn.  Comp.  Dec.  197,  it  was  held  that  where 
there  is  no  direct  evidence  of  the  value  of  board,  received  by  the  employe  as 
part  of  his  earnings,  except  as  to  a  few  of  the  things  served,  the  commis- 
sioner can  take  judicial  notice  of  the  cost  of  board  and  room  ordinarily.  In 
this  case,  having  regard  to  the  appearance  of  the  family  and  of  the  em- 
ploye, board  and  room  was  fixed  at  $3  per  week;  the  commissioner  holding 
it  proper  to  take  the  lower  limit,  since  the  burden  is  on  the  claimant  to  es- 
tablish his  case. 

Where  a  workman  was  earning  $30  a  month  besides  his  board,  which  was 
acknowledged  to  be  worth  $15  a  month,  his  average  monthly  wage  was  $45. 
Lewandowski  v.  Crosby  Transportation  Co.,  Rep.  Wis.  Indus.  Com.  1914-15, 
p.  9.  Where  a  workman  was  paid  $23  per  month  during  the  winter  months 
and  $30  per  month  during  the  fall,  together  with  board,  washing,  and  lodging, 
estimated  at  $10  per  month,  the  Commission  found  his  average  annual  earn- 
ings, including  the  board,  to  be  $452,  and  his  average  weekly  earning  $8.70. 
Vojacek  v.  Schlaefer,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  8. 

The  value  of  board  and  lodging  of  a  seaman  while  aboard  his  ship  is  the 
cost  to  the  employers  (here  Is.  7d.  a  day),  notwithstanding  that  it  would 
have  cost  the  seaman  more  ashore  (16s.  a  week),  and  in  determining  his 
earnings  its  value  must  be  added  to  the  money  compensation  of  21s.  a  week. 
Rosenquist  v.  Bowring  &  Co.,  Ltd.  (1909)  1  B.  W.  C.  C.  395,  C.  A.  Free 
food  and  washing,  supplied  to  the  captain  of  a  ship  in  addition  to  his  salary 
of  £216  per  year,  is  part  of  his  earnings,  and  its  value  is  the  cost  of  it  to  the 
employers.  Dothie  v.  MacAndrew  &  Co.  (1909)  1  B.  W.  C.  C.  308,  C.  A. 
Fletcher  Moulton,  L.  J.,  said  in  the  above  case :  "It  is  incontestable  that  you 
must  reckon  the  value  of  the  food  as  part  of  the  remuneration  which  he 

5  The  use  of  a  uniform  is  part  of  the  earnings  of  a  railway  guard,  al- 
though it  is  owned  by  his  employers.  Great  Northern  Ry.  Co.  v.  Dawson 
(1905)  7  W.  C.  C.  114,  C.  A.  (Act  of  1897). 

6  Duberly  v.  Mace    (1913)  6  B.  W.  C  C.  82,  C.  A, 


577  COMPENSATION  §   147 

such  as  compensation  for  a  prior  injury/  charity,*  the  value  of  as- 
sistance necessarily  procured  by  the  employe,  whether  furnished 
gratuitously  or  paid  for  by  him,®  or  business  profits,^*'  or  payment 
for  the  use  of  the  employe's  horse  in  his  work,^"^  or  the  rent  of  a 
house  supplied  by  his  employer  under  the  terms  of  a  lease,  and  not 

gets.  It  is  remuneration  in  tlie  sense  that  it  is  something  which  he  receives 
for  his  labor;  it  is  remuneration  in  the  sense  that  it  is  something  the  ex- 
pense of  which  has  to  be  borne  by  his  master  to  procure  that  hibor." 

7  Where  an  injured  workman,  who  was  receiving  compensation  for  his 
injury  under  the  agreement  that  his  pay  each  week  for  light  work  as  a 
battery  carrier,  divided  by  two,  should  be  subtracted  each  week  from  the 
amount  of  compensation,  met  with  a  fatal  accident  while  doing  the  light 
work,  only  his  wages  as  battery  carrier  are  to  be  considered  in  computing  his 
earnings.    Gough  v.  Crawshay  Bros.,  Ltd.  (1909)  1  B.  W.  C.  C.  374,  C.  A. 

8  Where  a  blind  man,  working  in  a  charitable  institution,  was  supplied 
with  board,  lodging,  clothing,  and  5s.  a  month  besides,  and  the  part  exceeding 
what  he  earned  was  made  up  by  charity,  compensation  must  be  based  on  his 
weekly  earnings,  excluding  the  contributions  of  charity.  IMacGillivray  v. 
Northern  Counties  Institute  for  the  Blind  (1911)  S.  C.  897,  Ct.  of  Sess. 

9  The  wages  of  a  drawer,  paid  by  a  miner  who  was  compelled  to  employ 
him,  were  not  part  of  the  miner's  earnings.  McKee  v.  Stein  &  Co.,  Ltd. 
(1910)  3  B.  W.  C.  C.  544,  Ct.  of  Sess.  Where  a  miner  was  assisted  by  his  son 
without  remuneration,  although  the  work  was  worth  2s.  9d.  per  day,  there 
being  no  money  paid,  there  could  be  no  reduction  in  earnings.  Nelson  v. 
Kerr  &  Mitchell  (1901)  3  F.  893,  Ct.  of  Sess. 

10  Where  a  workman,  who  was  paid  £94  a  year  before  his  accident,  made 
£98  a  year  clear  profit  on  a  public  house  which  he  bought  after  the  injury, 
this  amount  cannot  be  taken  as  a  criterion  of  his  earning  capacity.  Pater-, 
son  V.  Moore  &  Co.  (1910)  3  B.  W.  C.  C.  541,  Ct.  of  Sess.  Where  a  teamster 
worked  under  an  agreement  for  5s.  a  week,  provided  that,  if  he  ever  earned 
more  than  10s.  a  week,  his  wages  were  to  be  submitted  to  arbitration,  and 
employed  his  father  and  a  lad  on  a  farm  he  owned,  paying  his  father  13s. 
a  week,  the  decision  of  the  judge  reducing  his  compensation  for  loss  of  his 
left  thumb  to  Id.  a  week  was  not  disturbed.  Duberly  v.  Mace  (1913)  6  B. 
W.  C.  C.  82,  C.  A. 

11  Where  an  employe  is  hired  at  $5  a  day,  and  required  to  furnish  his  own 
horse  without  additional  pay,  it  would  be  manifestly  improper  to  allow  as 
wages  the  value  of  the  hire  of  the  horse,  that  being  an  income  from  the 
capital  invested,  and  not  for  the  personal  services  of  the  rider.  While  there 
is  no  absolute  standard  of  wage  for  man  and  horse  separately,  the  evidence 
here  established  as  a  reasonable  division  the  daily  wage  of  $3  for  the  serv- 

HoN.CoMP. — 37 


§  148  workmen's  compensation  578 

as  a  part  of  the  salary/^  or  wages  possible  under  a  contract,  but 
not  in  fact  received/^  or  a  pension  from  the  government.^*  Where 
an  employer  pays  to  an  employe  having  general  charge  of  the  affairs 
of  the  business  a  fixed  sum  of  money  each  month,  from  which  the 
employe  is  required  to  pay  an  assistant,  if  one  is  employed  by  him  to 
assist  in  the  work,  such  sum  as  may  be  agreed  upon  between  the 
employe  and  the  assistant,  the  sum  so  paid  the  assistant  forms  no 
part  of  the  salary  or  compensation  of  the  employe,  and  in  deter- 
mining the  salary  of  such  employe  the  amount  paid  the  assistant 
must  be  deducted  from  the  total  amount  paid  by  the  employer/^ 

§  148,     Loss  of  earning  capacity 

Compensation  is  based  upon  the  loss  of  earning  power  or  capacity 
to  earn,^"  as  to  which  the  claimant  has  the  burden  of  proof.^^    The 

ices  of  tbe  man  and  $2  for  rental  of  tbe  horse.  Kid  v.  New  Yorli  Motion 
Picture  Co.,  1  Cal.  I.  A.  C.  Dec.  475. 

12  Where,  as  an  inducement  to  enter  the  employment,  an  employe  secures 
a  lease  of  a  tract  of  land  of  his  employer  upon  which  is  located  the  house  in 
which  the  employe  lives  while  performing  the  work  of  his  employment,  the 
rent  of  the  house  cannot  be  included  as  a  part  of  the  salary  of  the  employe. 
Olson  V.  Olson  Winery  Co.,  2  Cal.  I.  A.  C.  Dec.  325. 

13  Where  the  contract  of  employment  of  a  wine  maker  provided  for  the 
payment  of  a  salary  and  also  for  an  increase  of  $25  for  each  100  tons  crush- 
ed in  excess  of  700  tons,  with  the  assurance  that  the  winery  would  run  at  its 
full  capacity  of  2,000  tons,  but  the  evidence  showed  that  no  grapes  in  excess 
of  700  tons  were  crushed,  the  sum  specified  in  the  contract  constituted  the 
annual  earnings  of  the  employ^.  Olson  v.  Olson  Winery  Co.,  2  Cal.  I.  A,  C. 
Dec.  325. 

14  A  pension  from  the  United  States  government  on  account  of  service  ren- 
dered in  the  army  or  navy,  or  on  account  of  disability  incurred  in  the  mili- 
tary or  naval  service,  will  not  be  considered  in  ascertaining  the  "average 
weekly  wage."    In  re  Harriet  Horn,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.,  p.  35. 

15  State  ex  rel.  Gaylord  Farmers'  Co-op.  Creamery  Ass'n  v.  District  Court, 
128  IMinn.  4S6,  151  N.  W.  182. 

ic  Without  such  loss  there  is  no  provision  for  compensation.  (Wk.  Comp. 
Act,  c.  831,  art.  2,  §  11)   Weber  v.  American  Silk  Spinning  Co.    (R.  I.)  95 

17  See  note  17  on  following  page. 


579  COMPENSATION  §   148 

object  of  this  legislation,  broadly  stated,  is  to  compensate  for  loss 
of  capacity  to  earn,  measured  by  what  the  workman  can  earn  in 

Atl.  603.  The  scheme  of  the  Compensation  Acts  makes  compensation  al- 
most inseparable  from  wages.  Porton  v.  Central  (Unemployed)  Body  for 
London  (1910)  2  B.  W.  C.  C.  301. 

Farwell,  L.  J.,  has  said :  "The  Acts  do  not  give  compensation  for  a  loss 
such  as  the  loss  of  a  limb,  but  for  the  loss  of  earning  capacity  actually 
caused  by  the  loss  of  such  limb.  During  the  continuance  of  such  incapacity 
the  loss  of  the  limb  diminishes  the  capacity  to  earn,  but  the  court  has  to 
measure  the  compensation  by  the  loss  of  earnings.  Therefore,  if  the  work- 
man has  learned  as  a  one-armed  man  to  earn,  and  earn  as  high  or  higher 
wages  than  he  got  as  a  man  with  both  arms,  he  cannot  then  get  compensa- 
tion, for  there  is  no  loss.  *  *  *  Physical  incapacity  due  to  the  loss  of  a 
limb  is  doubtless  strong  and  probably  conclusive  evidence,  in  the  absence  of 
anything  else,  of  incapacity  to  earn  full  wages  on  an  application  to  award 
compensation."  Calico  Printers'  Association,  Ltd.,  v.  Higham  (1912)  5  B.  W. 
C.  C.  110. 

The  evidence  showed  that  the  employe,  manager  for  the  subscriber,  re- 
ceived a  cut  from  a  circular  saw  which  necessitated  the  amputation  of  the 
forefinger  and  caused  material  damage  to  the  second  finger  of  the  right  hand. 
The  employ^  claimed  that  his  earning  capacity  had  been  lessened  by  the  in- 
jury, stating  that,  whereas  he  was  able  to  earn  $27  weekly  before  the  in- 
jury, he  was  able  to  earn  only  $13.50  afterward.  The  record  of  the  meeting 
of  the  corporation  by  which  he  was  employed  showed  that  by  vote  of  the 
corporation  at  its  annual  meeting,  seven  months  after  the  injury,  the  em- 
ploye's wages  were  fixed  at  $27  for  the  ensuing  year,  but  despite  this  vote 
it  was  claimed  that  the  earning  capacity  of  the  employe  was  only  $13.50 
weekly.  The  employ^  was  held  not  entitled  to  compensation.  Grady  v.  Fi- 
delity &  Deposit  Co.  of  Md.,  a  Mass.  Wk.  Comp.  Cases,  678  (decision  of  Com. 
of  Arb.,  affirmed  by  Indus.  Ace.  Bd.). 

Computation  of  loss  of  earning  power. — In  Carlson  v.  Emanuelson,  1  Conn. 

I'!'  The  burden  is  on  the  claimant  to  .show  with  reasonable  definiteuess  the 
extent  of  the  loss  of  earning  capacity.  Weber  v.  American  Silk  Spinning 
Co.  (R.  I.)  95  Atl.  603. 

In  Jacobs  v.  American  Steel  &  Wire  Co.,  1  Conn.  Comp.  Dec.  100,  it  was 
held  that  the  claimant  could  not  be  allowed  incapacity  compensation  on  ac- 
count of  an  injury  to  his  eye  which  incapacitated  him  for  work  as  a  printer, 
when  he  had  not  worked  at  this  trade  for  18  years  previous,  did  not  secure 
printing  work  after  voluntarily  leaving  his  other  employment,  and  did  not 
produce  any  evidence  of  the  prevailing  wages  in  the  printing  trade  at  the 
time,  though  experts  agreed  that  he  was  incapacitated  for  such  work  ap- 
proximately 10  per  cent.  The  claimant  must  show  his  earning  power  after 
the  injury,  in  order  to  recover  for  loss  of  earning  power. 


§  148  workmen's  compensation  580 

the  employment  in  which  he  is,  under  the  conditions  prevaihng 
therein  before  and  up  to  the  time  of  the  accident.    That  he  takes  a 

Comp.  Dec.  139,  where  a  woman,  employed  to  do  washing,  ironing,  house- 
cleaning,  and  similar  duties  for  several  employers,  sustained  an  injury,  after 
which  she  was  only  able  to  work  two  days  a  week,  instead  of  six,  as  before, 
she  was  awarded  one-half  her  loss  of  wages  during  such  partial  incapacity. 
Where  the  claimant  has  recovered  sufficiently  to  be  able  to  work  one-half 
of  the  time,  he  is  to  be  awarded  one-half  the  difference  between  his  wages  at 
the  time  of  the  injury  and  what  he  is  able  to  earn  now  by  reasonable  effort. 
Hurlowski  v.  American  Brass  Co.,  1  Conn.  Comp.  Dec.  6.  In  Field  v.  N.  Y., 
N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec.  199,  it  was  held  that  the  Commis- 
sioner, in  awarding  for  partial  incapacity,  can  determine  as  a  matter  of 
judicial  knowledge,  considering  evidence  of  the  workman's  capabilities  and 
health,  what  a  man  partially  incapacitated  can  reasonably  earn.  The  em- 
ploye was  in  a  nervous  condition,  and  it  was  found  that  the  only  practical 
way  to  regain  his  capacity  was  for  him  to  begin  on  light  work,  and  gradually 
increase  the  work  until  he  entirely  recovered ;  the  Commissioner  awarding 
compensation  until  a  time  sufficient  to  effectuate  a  comiDlete  recovery.  In 
Bristol  V.  Bristol,  1  Conn.  Comp.  Dec.  368,  where  the  employ^,  partially  in- 
capacitated, worked  for  the  same  employer,  receiving  $20  less  per  month 
than  before,  one-half  that  amount  was  awarded  him  as  compensation ;  in  this 
case  the  employer  had  already  iiaid  more  than  that  amount,  and  so  was  dis- 
charged from  liability.  In  Margolin  v.  Union  Hardware  Co.,  1  Conn.  Comp. 
Dec.  3.34,  where  because  of  the  injury  to  his  eye  the  claimant  was  unable  to 
do  his  previous  work,  or  any  other  which  he  could  find,  he  was  awarded  for 
total  incapacity,  provided  that,  if  his  employers  found  him  work,  the  wages 
he  then  earned  should  be  taken  as  his  earning  capacity.  In  Baggonski  v. 
Clayton  Bros.,  Inc.,  1  Conn.  Comp.  Dec.  299,  where  it  appeared  that  the 
claimant  had  been  taken  back  by  his  employer,  but  whereas  he  earned  $1.75 
per  day  before  the  injury,  he  was  then  earning  but  $1.50,  compensation  for 
partial  incapacity  was  awarded  on  the  basis  of  the  difference  of  earnings 
before  and  after  the  injury.  (Wk.  Comp.  Act,  pt.  B,  §  12)  In  PenSeld  v.  Town 
of  Glastonbury,  1  Conn.  Comp.  Dec.  637,  where  a  janitor  who  had  been  in- 
jured continued  to  work  and  draw  full  wages,  but  had  to  employ  assistants 
he  would  not  otherwise  have  needed,  compensation  for  loss  of  earnings, 
based  upon  the  amounts  so  expended,  was  awarded.  l<!eic  York.  In  deter- 
mining the  amount  of  an  award  for  compensation,  the  fact  that  the  vocation 
of  blacksmith  helper  is  not  a  vocation  which  requires  much  time  or  talent  to 
acquire,  and  that  the  workman  can  without  loss  take  up  some  other  vocation 
that  is  as  remunerative  as  that  of  a  blacksmith  helper,  will  be  considered. 
Saccoccio  v.  Bradley  Contracting  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  5,  p.  11. 
That  a  stockholder  would  not  have  received  so  large  a  salary,  but  for  the 
fact  that  he  was  a  stockholder,  and  that  if  he  were  to  go  into  the  employ  of 


581  COMPENSATION  §   1^8 

holiday  and  forfeits  his  wages  for  a  month  does  not  interfere  with 
what  he  can  earn.  It  is  only  that  for  a  month  he  did  not  choose  to 
earn.  So,  too,  where  there  is  a  casualty  accidentally  stopping  the 
work.  But  where  it  is  part  of  the  employment  to  stop  for  a  month 
in  each  year,  he  cannot  earn  wages  for  that  time  in  that  employ- 
ment, and  his  capacity  to  earn  is  less  for  the  year.^«  Under  the 
OhioAct  it  has  been  held  that,  inasmuch  as  the  purpose  of  the  Act 
is  to  compensate  the  employe  for  impairment  of  his  earning  capac- 
ity and  not  for  pain  and  suffering  ^^— the  rule  prevailing  under 
niany  of  the  Acts,  including  that  of  California  ^°— a  workman  who 

any  other  person  his  salary  would  be  greatly  reduced  owing  to  his  injury, 
did  not  form  a  basis  for  allowing  compensation  where  his  salary  m  fact  con- 
tinued the  same  as  before  the  accident.  Kennedy  v.  Kennedy  Mfg.  Co.,  The 
Bulletin,  N.  Y.,  vol.  1,  No.  5,  p.  12.  It  was  later  held  (vol.  1,  No.  8,  p.  8)  that, 
in  view  of  fact  that  his  salary  bad  been  reduced  by  the  company  which  suc- 
ceeded his  former  employer,  he  should  be  allowed  compensation  based  on  his 
loss  of  earnings. 

isAnslow  V.  Cannock  Chase  Colliery  Co.,  Ltd.   (1910)  2  B.  W.  C.  C.  361,  C. 

A.,  and  365,  H.  L.  ^        ^ 

Where  an  injured  workman,  who  had  returned  to  work  in  a  different  capac- 
ity, was  earning  as  much  as  before  the  accident,  but  later,  during  a  general 
fall  in  wages,  had  his  pay  reduced,  the  reduction  was  not  due  to  incapacity, 
and  cannot  be  considered  a  loss  of  earning  power.  Merry  &  Cuninghame,  Ltd., 
V.  Black  (1910)  2  B.  W.  C.  C.  372,  Ct.  of  Sess. 

The  Industrial  Accident  Board  was  not  prevented  from  awarding  additional 
compensation  for  impairment  of  earning  capacity  in  the  workman's  trade  by 
the  fact  that  the  claimant,  when  filing  his  petition  for  additional  compensa- 
tion and  when  the  testimony  was  taken,  was  earning  as  much  or  more  wages 
in  another  employment  than  he  did  before  the  accident.  Foley  v.  Detroit 
L'nited  Ry.  (Mich.)  157  N.  W.  45. 

Awards  made  are  according  to  a  surgical  scale  of  relative  impairment  of 
earning  capacity.  Previous  wages  or  specialized  value  of  lost  members  cannot 
be  considered.  While  the  workman  may  not  get  full  "compensation,"  he  will 
always  get  some  compensation,  without  expense  to  him  and  at  a  time  when 
he  most  needs  it.  (Wk.  Comp.  Act  Wash.  §  5)  Rulings  Wash.  Indus.  Ins. 
Com.  1915,  p.  17. 

10  In  re  David  Burns,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.,  p.  5. 

2  0  Compensation  is  not  allowed  for  pain  and  discomfort  following  injury, 
but  only  for  disability  to  labor  at  any  form  of  employment  which  the  injured 


§  148  workmen's  compensation  582 

receives  an  injury  resulting  in  temporary  disability,  and  who  en- 
ters other  employment  before  he  has  fully  recovered  at  a  wage 
equal  to  or  greater  than  he  was  receiving  at  the  time  of  his  injury, 
is  not  entitled  to  compensation  after  engaging  in  the  latter  employ- 
ment, even  though  he  was  not  at  that  time  able  to  resume  the 
employment  in  which  he  was  engaged  at  the  time  of  his  injury.-^ 
But  it  must  not  be  assumed  that  an  injured  emplo3''e  will  remain  in 
the  same  employment  always,  and  if  by  reason  of  permanent  in- 
jury or  disfigurement  he  is  handicapped  in  seeking  other  employ- 
ment, or  exercising  his  physical  powers  to  the  utmost,  compensa- 
tion should  be  awarded  for  this  loss  of  earning  capacity.^^    Award 

mau  might,  by  the  exercise  of  reasonable  diligence,  be  able  to  do.  Conse- 
quently, when  nature  has  remedied  the  injuries  as  far  as  it  can,  and  whatever 
remains  to  make  the  cure  complete  is  to  be  supplied  by  the  applicant  himself 
in  going  to  work  and  giving  his  limbs  the  use  which  alone  would  effect  his 
complete  restoration,  compensation  should  be  discontinued.  Kid  v.  New  York 
Motion  Picture  Co.,  1  Cal.  I.  A.  C.  Dec.  475.  Where  an  employe  has  sustained 
an  injury,  such  as  a  fracture,  which  has  healed  as  far  as  nature  can  repair 
the  damage  without  the  hearty  co-operation  of  the  injured  party  in  getting 
the  member  back  into  use,  the  emploj'6  is  not  entitled  to  further  compensation 
because  of  stiffness  and  pain  in  using  it.  The  law  does  not  contemplate  com- 
pensation for  mere  pain  and  inconvenience,  but  only  for  disability  to  labor. 
Wolff  v.  Levison  &  Zellerbach,  1  Cal.  I.  A.  C.  Dec.  347.  The  California  Com- 
mission regards  "disability,"  within  the  meaning  of  the  Act,  as  referring  to 
inability  to  earn,  and  no  form  of  temporary  disability  is  compensable  under 
the  Act,  except  and  in  so  far  as  it  involves  inability  to  earn.  Every  injured 
employe  is  expected  to  make  every  effort  to  earn  a  living,  either  at  the  old  or 
a  new  occupation.  Larnhart  v.  Rice-Landswick  Co.,  1  Cal.  I.  A.  C.  Dec.  557. 
Where,  as  often  happens  in  the  healing  of  a  bi-oken  rib,  a  nerve  is  caught  in 
the  callous  thrown  around  the  fracture,  and  the  injured  person  fesls  pain 
whenever  it  is  moved  or  touched,  but  the  pain  is  not  aggravated  nor  his  physi- 
cal condition  harmed  in  any  way  by  working  at  his  occupation,  and  the  con- 
dition of  the  nerve  would  be  relieved  sooner  by  resuming  work  and  forgetting 
about  it,  such  condition,  though  painful,  does  not  constitute  disability,  and  no 
compensation  will  be  awarded  during  its  continuance  after  the  rib  has  knit 
together  sufficiently  to  allow  his  return  to  work.  Semi  v.  Rolandi,  1  Cal.  I. 
A.  C.  Dec.  1S4. 

21  In  re  David  Burns,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  5. 

2  2  Greenock  v.  Drake,  2  Cal.  I.  A.  C.  Dec.  379. 


583  COMPENSATION  §  149 

must  be  made  with  reference  to  the  effect  of  the  injury  upon  the 
power  to  secure  employment  in  the  open  market.^^  Where  the  in- 
jury is  incurable,  the  temporary  increase  or  decrease  in  earnings 
need  not  be  considered.  This  is  so,  even  where  the  injured  employe 
continues  to  earn  his  wages  following  the  accident  in  an  amount 
equal  to  or  in  excess  of  his  former  earnings.^* 

§  149.     Massachusetts 

The  Massachusetts  Act  provides  that  the  Massachusetts  Em- 
ployes' Insurance  Association  shall  pay  to  the  injured  employe, 
where  the  injury  is  partial,  "a  weekly  compensation  equal  to  one- 
half  the  difference  between  his  average  weekly  wages  before  the 
injury  and  the  average  weekly  wages  which  he  is  able  to  earn 
thereafter,  but  not  more  than  $10  a  week;   and  in  no  case  shall  the 

23  A  dismemberment  of  the  body,  although  slight,  and  although  the  injured 
person  has  returned  to  his  employment  at  his  former  wages,  creates  a  partial 
disability;  it  causes  an  inability  to  compete  with  other  men  in  obtaining  em- 
ployment, and,  in  the  average  man,  results  in  a  lower  earning  power.  Bassett 
V.  Thomson  Graf  Edler  Co.,  1  Cal.  I.  A.  C.  Dec.  60.  The  loss  of  the  forefinger 
of  the  left  hand  affects  a  carpenter  and  cabinet  maker  very  differently  from 
a  sewer  digger.  The  California  Commission,  in  making  its  permanent  dis- 
ability ratings,  cannot  take  into  consideration  the  fact  that  the  present 
employer  of  the  applicant  may  always  retain  him  in  its  employment.  Ratings 
and  awards  must  be  made  with  reference  to  the  effect  of  the  injury  upon  a 
man's  securing  employment  in  an  open  labor  market.  Immel  v.  American 
Beet  Sugar  Co.,  2  Cal.  I.  A.  C.  Dec.  385.  Where  the  ability  to  compete  is 
seriously  impaired,  an  award  for  a  total  disability  indemnity  will  be  made, 
subject  to  the  condition  that,  if  the  employer  or  insurance  carrier  shall  find 
and  offer  to  the  injured  person  employment  suitable  to  his  physical  condition 
at  a  fair  wage,  the  injured  employ^  shall  be  entitled  to  receive  only  65  per 
cent,  of  the  difference  between  the  wage  he  was  receiving  at  the  time  of  his 
injury  and  the  wage  which  he  was  offered  for  doing  the  light  work  tendered 
by  the  employer  or  his  insurance  carrier.  Rally  v.  Island  Transportation  Co., 
2  Cal.  I.  A.  C.  Dec.  608. 

The  mere  fact  that  an  employer  gives  an  employ^  employment  after  an 
injury  is  not  binding  or  conclusive  as  to  the  character  of  the  earning  capacity 
of  the  employ^.    Waters  v.  Kewanee  Boiler  Co.,  Bulletin  No.  1,  111.,  p.  169. 

24  Greenock  v.  Drake,  2  Cal.  I.  A.  C.  Dec.  379. 


§  150  workmen's  compensation  584 

period  covered  by  such  compensation  be  greater  than  300  weeks 
from  the  date  of  the  injury."  -^  In  determining  the  compensation 
payable  under  this  provision,  no  deduction  should  be  made  from 
the  employe's  average  weekly  wages  earned  prior  to  the  injury 
because  of  subsequent  business  depression,  but  the  award  should 
be  based  on  the  difference  between  the  wages  which  he  actually 
earned  prior  to  the  injury  and  the  wages  which  he  is  able  to  earn 
subsequent  thereto.^®  The  compensation  given  is  not  properly  con- 
sidered as  a  payment  of  wages.  The  quantum  of  compensation  is 
measured  by  the  amount  of  wages ;  but  the  payment  is  in  place  of 
all  the  rights  of  action  that  belonged  to  the  injured  employe  and 
covers  suffering  as  well  as  loss  of  wages.^^ 

§  150.     Computation  of  earnings  in  general 

In  computing  the  average  earnings  for  a  particular  period,  micro- 
scopical accuracy  is  not  required,  and  indeed  is  seldom  possible. 
The  nature  of  the  employment,  its  terms,  its  actual  duration,  and 
the  personal  qualifications  of  the  workman  may  all  be  taken  into 
consideration.-^  What  is  to  be  considered  in  determining  the 
amount  of  wages  is  not  the  recompense  in  fact  received,  but  the  rate 
which  the  contract  of  hiring  fixed,  whether  that  rate  was  in  fact 

2  5  St.  1911,  c.  751,  pt.  2,  §  10. 

26  In  re  Duruey,  In  re  Revere  Rubber  Co.,  In  re  American  Mut.  LiabDity 
Insur.  Co.,  222  Mass.  461,  111  N.  E.  166. 

2  7  (St.  1911,  c.  751,  pt.  2,  §§  3,  11)  King  v.  Viscoloid  Co.,  219  Mass.  420,  106 
N.  E.  9SS. 

2  8  Bamett  v.  Port  of  London  Authority  (1913)  6  B.  W.  C.  C.  111.  Where  a 
man  worked  odd  days  before  and  after  pay  day,  when  he  began  and  was 
leaving  the  employment,  the  judge,  in  computing  his  average  weekly  earnings, 
should  have  added  these  odd  days  together,  instead  of  counting  them  two 
full  weeks.  Turner  v.  Port  of  London  Authority  (1913)  6  B.  W.  C.  C.  23,  C.  A. 
In  computing  the  average  weekly  earnings  for  a  year  and  a  half  work,  the 
judge  properly  refused  to  consider  two  periods  of  four  days  each  when  the 
worlanan  was  sick  and  unable  to  work.    Id. 


585  COMPENSATION  §   150 

realized  for  the  whole  time  or  not.^®  The  amount  to  be  awarded  is 
not  to  vary  according  to  the  employe's  age,  or  the  character  of  his 
work,  or  his  expectancy  of  life ;  the  only  variance  between  the  cas- 
es of  different  employes  is  that  caused  by  a  difference  in  wages 
earned.^"  In  the  case  of  concurrent  contracts  of  service — that  is, 
contracts  running  concurrently  in  respect  to  successive  and  sep- 
arate employment — the  computation  of  weekly  earnings  as  a  basis 
of  an  award  is  to  be  made  as  if  all  the  earnings  were  earned  in  the 
employment  of  the  one  who  was  employer  at  the  time  of  the  in- 
jury,^^  provided  the  services  are  performed  in  the  same  occupation. 

2  9  In  an  employment  and  in  a  community  where  the  regular  working  week 
was  six  days  of  ten  hours  each,  and  the  workman  was  paid  25  cents  an  hour, 
the  hourly  rate  reduced  to  a  weekly  rate  was  $15  a  week.  (P.  L.  1913,  p.  313) 
Smolensk!  v.  Eastern  Coal  Dock  Co.,  87  N.  J.  Law,  26,  93  Atl.  85.  Where 
petitioner  had  worked  only  part  of  a  day  at  the  time  of  his  injury,  and  up  to 
11  o'clock  had  earned  $1.60,  it  could  be  properly  found  that  he  was  earning 
$4  per  day.    Schaeffer  v.  De  Grottola,  85  N.  J.  Law,  444,  89  Atl.  921. 

30  (P.  L.  1911,  §  2)  Bateman  Mfg.  Co.  v.  Smith,  85  N.  J.  Law,  409,  89  Atl.  979. 

31  Where  a  night  watchman  works  for  six  independent  employers  at  the 
same  time,  his  earnings,  upon  which  compensation  is  to  be  computed,  are  the 
total  amount  received  from  all  six,  and  not  just  the  amount  received  from 
the  employer  on  whose  premises  he  was  injured.  (Wk.  Comp.,  etc.,  Act,  §  17) 
Western  Metal  Supply  Co.  v.  Pillsbury  (Cal.)  156  Pac.  491.  Where  a  night 
watchman  is  employed  by  a  number  of  employers  severally,  and  is  paid  a 
certain  amount  by  each  for  watching  their  premises,  his  average  annual  earn- 
ings are  to  be  fixed  at  the  amount  earned  by  him  from  all  of  such  employers 
in  his  occupation  of  night  watchman  during  the  year  preceding  his  injury. 
Compensation  is  not  primarily  determined  between  the  employer  and  his  in- 
jured employe,  but  between  the  state  and  the  industries  of  the  state.  It  is 
rated  upon  the  average  amount  necessary  to  tide  injured  persons  over  periods 
of  adversity  consequent  upon  accident.  The  accident  has  deprived  the  widow 
of  the  whole  of  the  earnings  of  the  deceased  from  all  sources  as  niglit  watch- 
man, and  she  is  entitled  to  an  award  computed  upon  the  whole  of  her  hus- 
band's earnings.    Mason  v.  Western  Metal  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  284. 

There  were  concurrent  contracts  of  service,  upon  which  to  compute  earn- 
ings, where  a  charvroman  worked  regularly  certain  days  of  the  week  for  one 
employer,  and  on  other  days  worked  for  other  people  (Dewhurst  v.  Mather 
[1909]  1  B.  W.  C.  C.  328,  C.  A.) ;  where  a  railway  company's  rule  that  their 
employes  must  "deA^ote  themselves  exclusively  to  the  company's  service"  meant 


§  150  workmen's  compensation  586 

Where  a  person  is  employed  as  a  night  watchman,  and  also  earns 
a  small  amount  acting  as  janitor  in  the  daytime,  the  sums  earned 
as  janitor  in  the  employment  of  others  cannot  be  included  in  his 
average  annual  earnings  for  the  purpose  of  ascertaining  the  amount 
of  death  benefit,  where  he  is  killed  while  acting  as  night  watchman. 
It  was  as  night  watchman  that  he  was  employed  by  the  defendant, 
and  his  earnings  in  that  occupation  only  are  to  be  considered.^^ 

In  determining  the  amount  of  compensation  due  for  a  temporary 
disability,  compensation  is  based  upon  the  present  total  or  partial 
loss  of  earnings.^^  The  probable  loss  of  wages  will  be  determined 
by  computation  and  estimate  from  all  the  evidence,  and  cannot  be 
established  definitely  by  evidence  of  earnings  at  any  particular 
time.^* 

§  151.    Determination  of  average  earnings 

In  California,  where  a  workman  has  worked  substantially  the 
whole  of  the  preceding  year  in  the  same  employment,  his  average 

that  they  must  do  so  only  during  the  hours  of  the  day  they  were  working 
for  the  company,  and  a  plate  layer  worked  evenings  in  a  theater  (Lloyd  v. 
Midland  Ry.  Co.  [1914]  7  B.  W.  C.  C.  72,  C.  A.) ;  and  where  the  stoker  on  a 
merchant  ship  received  in  addition  to  his  earnings  there  a  retainer  of  £6 
per  year  as  a  member  of  the  Royal  Naval  Reserve  (Owners  of  S.  S.  Raphael 
V.  Brandy  [1911]  4  B.  W.  C.  C.  307,  H.  L.,  and  6,  C.  A.) ;  but  not  where  a  casual 
laborer  worked  at  two  different  times  for  two  different  employers  (Cue  v. 
Port  of  London  Authority  [1914]  7  B.  W.  C.  C.  447,  C.  A.).  Where  a  work- 
man, in  conjunction  with  his  three  years'  continuous  employment  by  the 
respondents,  worked  as  a  sorter  in  the  post  office,  and  was  killed,  his  earnings 
under  the  concuiTent  contract  were  not  considered.  Buckley  v.  Loudon  & 
India  Docks  (1910)  2  B.  W.  C.  O.  327,  C.  A. 

32  Mason  v.  Western  Metal  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  284. 

33  Greenock  v.  Drake,  2  Cal.  I.  A.  C.  Dec.  379. 

Where  one  employed  at  a  yearly  salary  sustains  an  injury  resulting  in 
temporary  disability  only,  he  is  not  entitled  to  compensation  if,  under  his 
contract,  no  deduction  from  his  salary  Is  to  be  made  for  loss  of  time.  In  re 
A.  Costello,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  54. 

3  4  Saunders  v.  Oxnard  Home  Telephone,  1  Cal.  I.  A.  C.  Dec.  636. 


587  COMPENSATION  §   151 

annual  earnings  are  to  be  taken  at  three  hundred  times  his  average 
daily  wage.  The  average  daily  wage  is  to  be  ascertained  by  divid- 
ing the  whole  amount  earned  by  the  employe  during  the  number  of 
days  worked  in  earning  such  amount,  and  not  by  the  number  of 
working  days  in  the  year.^^  Where  the  employe  has  worked  stead- 
ily for  more  than  a  year  under  the  same  conditions,  it  is  improper  to 
determine  his  average  annual  earnings  by  multiplying  his  average 
daily  wage  by  three  hundred ;  this  method  applying  only  where  the 
employe  has  worked  substantially  less  than  a  year.^®  Earnings  can 
be  computed  on  the  basis  of  the  average  annual  earnings,  or  twelve 
times  the  average  monthly  earnings  during  the  year  preceding  the 
injury,  only  where  the  employe  has  worked  substantially  all  of  the 
year,"  except  possibly  where  he  belongs  to  a  class  not  accustomed 
to  put  in  full  time  throughout  the  year,  and  it  is  possible  to  arrive  at 
an  accurate  figure  representing  monthly  earnings  based  on  actual 
earnings  over  a  portion  of  the  year.^^    By  "substantially  the  whole 

3  5  Craig  V.  Axt,  1  Cal.  I.  A.  C.  Dec.  72;  Frankfort  General  Ins.  Co.  v.  Pills- 
bury  (Cal.)  159  Pac.  150. 

36  (Wlc.  Comp.  Act,  pt.  2,  §  11)  Robbins  v.  Original  Gas  Engine  Co.  (Mich.) 
157  N.  W.  437. 

3  7  Rep.  Nev.  Indus.  Com.  1913-14,  p.  21;  Andrew jesld  v.  Wolverine  Coal 
Co.,  182  Mich.  298,  148  N.  W.  684. 

3  8  Where  it  appears  that  employes  of  a  certain  class  do  not,  as  a  rule,  put 
in  full  time  throughout  the  year,  and  that  it  is  possible  to  arrive  at  an  ac- 
curate figure  representing  monthly  earnings  based  upon  actual  earnings  over 
a  portion  of  the  year,  average  annual  earnings  may  be  talien  as  12  times  such 
monthly  earnings,  instead  of  at  300  times  the  daily  wages.  Coleman  v.  Guilfoy 
Cornice  Works,  1  Cal.  I.  A.  C.  Dec.  31.  An  injured  employe  was  engaged 
in  rafting  logs,  an  employment  normally  lasting  four  months  in  the  year,  at 
a  daily  wage  of  $3.60,  and  it  could  fairly  be  presumed  that  for  the  remaining 
eight  months  he  could  have  secured  work  in  the  neighboring  mills  as  a  common 
laborer  at  $2.25  per  day.  The  average  annual  earnings  were  rated  at  $3.60  per 
day  for  four  months  and  $2.25  per  day  for  eight  months.  Ruprecht  v.  Red 
River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  864.  But  because  an  industry  is 
seasonal  it  does  not  necessarily  follow  that  all  employments  connected  with 
it  are  also  seasonal.  Where  an  employe  is  following  a  calling  which  is  used 
at  all  seasons,  as  that  of  a  stationary  engineer,  then,  athough  he  may  be 


§  151  workmen's  compensation  588 

year,"  within  the  California  Act,  is  meant  that  the  employe  must 
have  worked  anywhere  from  two  hundred  and  seventy-five  to  three 
hundred  and  twelve  days.  Where  such  is  the  case,  no  attention 
is  paid  in  calculating  the  average  annual  wage  to  working  days  in 
which  the  employe  was  not  employed,  as  a  sufficient  average  or 
deduction  is  made  for  them  by  the  statutory  requirement  fixing  the 
average  annual  earnings  at  three  hundred  times  the  average  daily 
wage.^^  In  that  state,  where  the  workman  is  employed  for  seven 
days  in  the  week,  the  average  daily  wage  is  multiplied  by  three 
hundred  and  thirty-two,  instead  of  three  hundred.*"  Where  he  is 
hired  to  work  continuously,  but  is  to  have  two  holidays  off  for  every 
holiday  which  he  works,  Sundays  being  counted  as  holidays,  his 
average  annual  earnings  are  to  be  determined  upon  the  basis  of 

working  at  the  time  of  the  injury  in  a  seasonal  industry,  his  occupation  is 
not  of  itself  seasonal,  and  the  average  annual  earnings  will  be  and  are  here 
found  by  multiplying  the  average  monthly  earnings  by  12.  Reger  v.  McCloud 
River  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  567. 

39  Craig  V.  Axt,  1  Cal.  I.  A.  C.  Dec.  72. 

.  *o  Where  an  employ^  is  required  by  his  contract  of  hire  to  work  seven  days 
per  week,  subdivisions  1  and  2  of  subsection  (a)  of  section  17  of  the  California 
Act  cannot  fairly  and  reasonably  be  applied.  These  subdivisions,  which  fix 
the  average  annual  earnings  at  300  times  the  average  daily  wage,  clearly 
have  reference  only  to  employment  for  six  days  per  week,  as  the  number  300 
is  a  fair  average  of  days  actually  worked  per  year  only  for  such  men  as  work 
approximately  six  days  per  week  throughout  substantially  the  whole  year. 
Where  an  employe  works  seven  days  per  week,  his  average  annual  earnings 
are  to  be  computed  by  subdivision  3  of  subsection  (a)  of  section  17,  and  are 
to  be  found  by  multiplying  the  average  daily  wage  by  an  arbitrary  average 
representative  of  the  number  of  days  per  year  that  one  so  employed  actually 
works,  and  fixed  by  the  Commission  at  332.  Gallagher  v.  City  of  Los  Angeles, 
2  Cal.  I.  A.  C.  Dec.  26;  Phillips  v,  Chanslor-Canfield  Midway  Oil  Co.,  1  Cal. 
I.  A.  C.  Dec.  580.  But  the  usual  method  applies  where  an  employe  was  sup- 
posed to  be  working  seven  days  a  week,  but  actually  received  two  days  off 
each  month  on  an  average,  and  had  worked  substantially  the  whole  year  pre- 
ceding the  injury  with  the  same  employer,  and  to  ascertain  his  average  annual 
earnings  there  should  b6  multiplied  by  300  his  average  daily  earnings,  obtained 
by  dividing  his  actual  earnings  by  the  number  of  days  he  was  actually  em- 
ployed.    Reals  V.  United  Railroads  of  San  Francisco,  3  Cal.  I.  A.  C.  Dec.  30. 


589  COMPENSATION  §    151 

employment  seven  days  in  the  week  for  one-third  of  the  year  and 
six  days  in  the  week  for  two-thirds  of  the  year.*^  It  is  immaterial 
that  the  earnings  of  the  year  were  above  or  below  normal,  or  were 
more  or  less  than  he  earned  in  other  years. "^  Where  other  methods 
of  computation  are  not  available,  the  annual  earning  "capacity"  of 
the  employe  at  the  time  of  the  accident  will  be  used  to  determine 
the  average  annual  earnings.*^ 

Where  the  period  of  employment  has  been  so  short  as  to  fur- 
nish no  basis  for  determining  the  average  wage,  the  rate  of  wages 
received  by  the  workman  at  the  time  of  receiving  the  injury  and 
the  wages  usually  paid  in  that  vicinity  for  the  same  class  of  work 
may  be  taken  into  consideration  in  determining  the  average  wage.** 

4iHolmquist  v.  Shipowners'  &  Merchants'  Tugboat  Co.,  1  Cal.  I.  A.  C.  Dec. 
224. 

4  2  Where  the  injured  employe  has  worked  substantially  the  whole  of  the 
year  immediately  preceding  his  injury  in  the  same  employment,  whether  foi 
the  same  employer  or  not,  the  earnings  for  that  year  alone  are  to  he  taken  as 
the  basis  for  computing  his  average  annual  earnings.  (Wk.  Comp.,  etc.,  Act,  § 
17,  par.  1.)  The  fact  that  the  earnings  for  such  year  are  above  or  below  nor- 
mal cannot  be  considered,  nor  can  his  earnings  for  other  years  be  taken  into 
account.    Gordon  v.  Evans,  1  Cal.  I.  A.  C.  Dec.  94. 

43  Where  an  aviator  had  been  employed  for  only  six  weeks,  and  there  was 
no  evidence  as  to  what  are  the  average  earnings  of  aviators  where  engaged 
for  the  whole  year,  the  third  method  provided  in  the  Act,  namely,  the  annual 
earning  "capacity"  of  the  employe  at  the  time  of  the  accident,  will  be  used 
to  determine  the  average  annual  earnings.  In  this  case  the  maximum  allowed 
by  law  was  determined  upon  as  the  average  weekly  earnings  and  was  in 
excess  of  $70  per  week.  Stites  v.  Universal  Film  Mfg.  Co.,  2  Cal.  I.  A.  C.  Dec. 
670. 

44  In  re  Frances  Williams,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  31. 
'S^'Oiere  an  instructress  employed  by  the  city  is  drawing  a  salary  of  $G0  per 

month,  but  has  not  worked  a  full  year,  the  presumption  is  that  persons  doing 
the  same  work,  who  worked  by  the  year,  received  the  same  wages  per  month 
that  she  received.    Shannessy  v.  City  of  Chicago,  Bulletin  No.  1,  111.,  p.  160. 

The  California  Act  provides  that,  where  other  methods  cannot  "be  fairly 
and  reasonably  applied,"  the  "earning  capacity"  of  the  employe  may  be  com- 
puted with  regard  to  the  earnings  of  other  employes  in  the  same  class  and 
his  previous  earnings.     (Wk.  Comp.,  etc..  Act,  §  17  [a]  [3].)     Where  a  miner 


<j  151  workmen's  compensation  590 

While  it  has  been  the  general  practice  under  the  various  Acts,  in 
determining-  the  issue  of  average  annual  earnings,  to  compute  the 

works  only  a  few  weeks  at  a  time  in  order  to  secure  a  grub  stake  and  spends 
the  rest  of  his  time  prospecting,  his  average  annual  earnings  are  based,  not 
upon  his  actual  earnings  during  the  year  preceding  the  injury,  but  upon  the 
basis  of  the  wages  of  other  employes  in  the  same  or  a  similar  employment 
who  have  worked  substantially  the  whole  year.  Larson  v.  Holbrook,  McGuire 
&  Cohen,  2  Cal.  I.  A.  C.  Dec.  105.  Where  the  injured  employe  has  worked 
less  than  one  year  in  the  occupation  where  he  is  employed  at  the  time  of  his 
injury,  his  average  daily  earnings  are  to  be  fixed  at  the  average  daily  wage 
of  other  employes  doing  similar  work.  Rudder  v.  Ocean  Shore  Railroad  Co., 
1  Cal.  I.  A.  C.  Dec.  209;  Clark  v.  Los  Angeles  County,  1  Cal.  I.  A.  C.  Dec. 
623.  (Wk.  Comp.,  etc..  Act,  §  17  [a]  [2].)  Where  an  employe  has  not  worked 
substantially  the  whole  year  in  the  employment  wherein  he  is  injured,  the 
law  required  that  his  average  annual  earnings  be  computed  on  a  basis  of  the 
experience  of  other  men  of  his  class  who  have  worked  substantially  the  whole 
year.  Testimony  must  be  taken  as  to  the  common  experience  of  men  of  the 
grade  and  class  to  which  the  injured  workman  belongs  in  the  employment  in 
which  he  is  engaged  at  the  time  of  his  injury.  In  determining  average  annual 
or  daily  wages  of  an  employ^,  the  issue  is  not  as  to  what  the  actual  earnings 
of  the  injured  employe  may  or  may  not  have  been.  The  purpose  of  the  law  is 
to  reach  the  common  experience  in  the  same  or  a  neighboring  locality  of 
workmen  of  a  class  to  which  the  injured  workman  belongs.  Craig  v.  Axt,  1 
Cal.  I.  A.  C.  Dec.  72.  Where  an  employe  received  $2.50  a  day  and  his  board, 
and  was  engaged  in  outside  work  requiring  his  absence  from  home,  it  was 
proper  to  fix  his  daily  wages  with  reference  to  the  wages  received  by  others 
in  the  same  occupation  with  reference  to  work  at  the  place  of  employment 
and  with  reference  to  allowances  for  board  while  away  from  the  place  of 
employment.  Binkley  v.  Western  Pipe  &  Steel  Co.,  1  Cal.  I.  A.  C.  Dec.  33. 
But  in  determining  the  average  daily  wages  of  a  person  employed  for  only  a 
short  time  before  the  accident,  regard  cannot  be  had  to  the  employe's  earnings 
in  other  or  more  skilled  occupations  prior  to  his  accident.  \Miere  such  person 
is  employed  at  the  time  of  the  accident  as  a  common  laborer,  his  average  daily 
wage  must  be  determined  upon  the  basis  of  that  paid  common  laborers  in  that 
community,  even  though  the  employe  was  a  fireman  and  had  worked  at  that 
occupation  within  the  previous  few  weeks.  Ginther  v.  Knickerbocker  Co.,  1 
Cal.  I.  A.  C.  Dec.  458. 

Where  a  workman  belonging  to  a  labor  union  having  a  fixed  scale  of  wages 
per  day  was  employed  by  the  day  at  the  time  of  his  death,  but  had  worked 
under  prior  employments  by  the  job,  the  case  was  one  in  which  it  was  im- 
practicable to  compute  the  average  wages,  and  where  resort  could  be  had  to 
the  average  amounts  earned  by  a  person  in  the  same  grade,  employed  in  the 


591  COMPENSATION  §   151 

wages  on  the  basis  of  what  the  injured  employe  was  doing  and  the 
pay  he  was  receiving  at  the  time  of  the  accident,^^  where  a  laborer 

same  employment  in  the  same  vicinity.     (Wk.  Comp.  Act,  pt.  5,  §  2,  cl.  4) 
Gove  V.  Royal  Indemnity  Co.,  223  Mass.  187,  111  N.  E.  702. 

Tbe  following  definition  of  "average  monthly  wages"  was  adopted  by  the 
Nevada  Industrial  Commission:  "Average  monthly  wages  shall  mean  the 
earnings  of  the  injured  employ§  during  the  period  of  twelve  calendar  months 
immediately  preceding  the  date  of  injury,  divided  by  12;  but  if  the  injured 
employe  lost  more  than  two  weeks'  time  during  such  period,  then  the  earnings 
for  the  remainder  of  such  twelve  calendar  months  shall  be  divided  by  the 
number  of  months  remaining  after  the  time  so  lost  has  been  deducted.  When, 
by  reason  of  the  shortness  of  the  time  during  which  the  employe  has  been 
in  the  employment  of  his  employer,  or  the  nature  of  the  terms  of  the  employ- 
ment, it  is  impracticable  to  compute  the  average  monthly  wages,  as  above 
defined,  regard  may  be  had  to  the  average  monthly  amount  wliich,  during 
the  twelve  months  previous  to  the  injury,  was  being  earned  by  a  person  in  the 
same  grade,  employed  at  the  same  work  by  the  same  employer;  or,  if  there 
is  no  person  so  employed,  by  a  person  in  the  same  grade,  employed  in  the 
same  class  or  employment  and  in  the  same  district.  Whenever  it  may  be  im- 
practicable to  compute  the  average  monthly  wages,  as  above  defined,  the  com- 
putation shall  be  made  by  the  Nevada  Industrial  Commission  in  such  manner 
as  the  Commission  may,  in  its  judgment,  deem  just  to  all  concerned.  The 
earnings  or  wages  of  the  injured  employ^,  in  the  employment  of  the  said  em- 

4  5  Martin  v.  Mahoney  Bros.,  2  Cal.  I.  A.  C.  Dec.  436.  Where  a  workman,  by 
occupation  a  cement  finisher,  at  which  trade  he  receives  ?5  a  day,  does  such 
other  work  as  the  necessities  of  his  employer  require,  occasionally  that  of  au 
ordinary  cement  worker  for  a  wage  of  $4  per  day,  or  that  of  a  carpenter's 
helper  for  a  wage  of  $2.50  per  day,  and  is  injured  while  working  as  a  car- 
penter's helper,  the  disability  compensation  must  be  based  on  the  earnings 
at  the  time  of  the  accident  as  a  carpenter's  helper.    Id. 

Where  a  brewery  worker  was  hired  as  a  helper  in  sinking  and  digging  a 
well,  and  paid  the  regular  brewery  union  rate  of  $3  per  day,  his  average 
weekly  wage  was  $18,  and  not  what  a  laborer  doing  similar  work  would  regu- 
larly average  in  earnings  per  week.  Coyle  v.  Mass.  Employes'  Insur.  Ass'n,  2 
Mass.  Wk.  Comp.  Cases,  704  (decision  of  Com.  of  Arb.,  affirmed  by  Indus. 
Ace.  Bd.). 

Where  a  village  marshal  called  upon  decedent  to  assist  in  controlling  an 
offender,  who  fatally  wounded  deceased,  the  basis  of  compensation  to  be 
awarded  his  widow  was  the  earnings  of  one  doing  a  policeman's  services  in 
that  or  a  neighboring  locality,  and  not  his  average  weekly  wages  in  his  usual 
occupation,  that  of  a  plumber.  Village  of  West  Salem  v.  Indus.  Com.,  162 
Wis.  57,  155  N.  W.  929. 


§  151  workmen's  compensation  592 

regularly  receives  twenty  cents  an  hour  wages,  but  on  an  extraor- 
dinary occasion,  in  which  he  is  injured,  is  paid  one  dollar  an  hour, 
the  extraordinary  remuneration  should  be  disregarded  in  fixing  his 
average  earnings.*^  Where,  in  a  New  York  case,  it  appeared  that  a 
motorman  on  a  street  car  had  been  shifted  to  a  new  run  a  month 

ployer  in  which  he  was  engaged  when  injured,  are  the  only  earnings  or  wages 
that  shall  be  considered  in  computing  average  monthly  wages.  No  additional 
source  of  income  or  earning  power  shall  be  considered.  'Average  monthly 
earnings'  shall  have  the  same  meaning  as  'average  monthly  wages.'  "  Rep. 
Nev.  Indus.  Com.,  1913-14,  p.  21. 

Where  the  deceased  workman  had  worked  for  his  employer  only  a  short 
time,  his  average  annual  earnings  were  computed  from  the  amount  paid  other 
employes  in  the  same  or  similar  employment  who  had  worked  substantially  a 
whole  year.    Nycek  v.  C.  Reiss  Coal  Co.,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  23. 

Average  wages  in  grade  and  personal  elcm<:)it.  "Having  found  that  a  man 
iias  a  particular  grade  and  what  are  the  average  wages  in  that  grade,  there  is 
no  obligation  to  adopt  those  average  wages  as  the  basis  of  compensation.  The 
personal  element  then  comes  in.  It  will  still  be  open  to  consider  whether 
the  individual  workman  is  an  average  man,  or  below  an  average  man.  This 
must  be  so  where  men  in  a  particular  grade  are  employed  in  piece  work. 
You  cannot  reject  evidence  of  the  skill  and  efficiency  of  the  individual  work- 
man;  where  payment  is  at  so  much  an  hour  for  every  man  in  a  particular 
grade,  the  skill  and  efficiency  of  the  individual  may  perhaps  be  disregarded, 
though  I  am  not  prepared  to  say  that  the  age  and  the  habits  of  the  individual 
may  not  have  such  an  influence  upon  his  chance  of  employment  as  to  deserve 
consideration."  Cozens-Hardy,  M.  R.,  in  Ferry  v.  Wright  (1909)  1  B.  W.  C.  C. 
354.  Where  the  wages  of  a  casual  dock  laborer  averaged  £2  a  week  for  a 
year,  whereas  the  average  wages  of  the  whole  class  of  dock  laborers  averaged 
only  2os.  a  week,  the  judge  should  have  considered  this  element  in  awarding 
compensation,  instead  of  merely  allowing  him  half  of  the  class  average  wage. 
Snell  V.  Bristol  Corporation  (1914)  7  B.  W.  C.  C.  2.36,  C.  A.  Where  a  casual 
laborer's  compensation  was  based  upon  his  average  weekly  earnings  under 
the  proviso  of  the  schedule,  disregarding  the  fact  that  when  working  for 
other  employers  he  showed  himself  able  to  earn  more  than  the  average,  such 
personal  qualifications  must  be  taken  into  consideration.  Cue  v.  Port  of 
London  Authority  (1914)  7  B.  W.  C.  C.  447,  C.  A.  Where  a  county  judge, 
holding  casual  and  regular  shipwrights  to  be  distinct  grades,  awarded  for  the 
death  of  a  casual  shipwright  the  average  wages  of  a  good  workman  of  that 
grade,  there  being  no  evidence  as  to  whether  the  particular  workman  was 
above  or  below  the  average,  his  award  was  without  error.  Cain  v.  Leyland  & 
Co.,  Ltd.  (1909)  1  B.  W.  C.  C.  351,  3CS,  C.  A. 

46  Mazzini  v.  Pacific  Coast  Ry.,  2  Cal.  I.  A.  C.  Dec.  9G2. 


593  COMPENSATION  §   152 

before  the  accident,  at  an  increase  per  hour  in  wages,  and  there  was 
evidence  that  it  was  customary  to  pay  motormen  in  the  service 
as  long  as  the  claimant  had  been  the  rate  he  was  getting  in  the  lat- 
er employment,  his  wages  were  to  be  taken  as  of  the  date  of  the 
injury,  and  not  those  earned  during  the  entire  preceding  year,  part 
of  which  were  earned  on  the  other  run.*^  Under  the  California  Act, 
the  weekly  payments  of  permanent  partial  disability  indemnity  in 
case  of  a  minor  are  to  be  assessed  at  the  probable  earnings  of  the 
minor  after  reaching  the  age  of  twenty-one,  in  the  occupation  in 
which  he  was  employed  at  the  time  of  his  injury,  in  the  usual  course 
of  promotion,  if  he  had  not  been  injured.^^  Where  at  the  time  of 
the  death  of  a  minor  iron  worker  he  had  been  promised  that,  if  he 
showed  greater  proficiency  in  operating  a  riveter,  he  would  in  two 
months  receive  forty  cents  an  hour,  and  it  is  shown  that  this  is  five 
cents  an  hour  greater  than  the  average  adult  wage  for  the  same 
kind  of  work,  the  average  adult  wage  must  be  the  basis  of  com- 
putation, and  not  possible  earnings  for  unusual  efficiency.*®  In 
New  Jersey,  compensation  for  the  death  of  an  employe  should  be 
calculated  on  the  wages  being  received  by  him  at  the  time  of  his 
death,  and  not  limited  to  his  average  wages.^" 

§  152.     Average  weekly  earnings 

The  "average  weekly  earnings,"  sometimes  the  proper  basis  of 
the  award,°^  signify  the  average  earnings  which  the  workman  would 

4  7  Fredenburg  v.  Empire  United  Rys.,  Inc.,  168  App.  Div.  618,  154  N.  Y. 
Supp.  351. 

4  8  (Wk.  Comp.,  etc.,  Act,  §  17,  [c])  Collins  v.  York  Bradford  Co.,  Inc.,  2 
Cal.  I.  A.  C.  Dec.  220. 

4  9  Mashburn  v.  California-Portland  Cement  Co.,  2  Cal.  I.  A.  C.  Dec.  613. 

5  0  (P.  L.  1911,  p.  137,  §  2,  par.  12)  Davidheiser  v.  Hay  Foundry  &  Iron 
Works,  87  N.  J.  Law,  688,  94  Atl.  309,  following  Huyett  v.  Pennsylvania  R.  R. 
Co.,  86  N.  J.  Law,  683,  92  Atl.  58,  stating  such  to  be  the  law,  though  injustice 

61  (Wk.  Comp.  Act,  pt.  2,  §  11)  Linsteadt  v.  Louis  Sands  Salt  &  Lumber  Co. 
(Mich.)  157  N.  W.  64. 

HoN.CoMP. — 38 


§  152  workmen's  compensation  594 

make  in  a  normal  week  if  he  were  employed  on  the  terms  pre 
vailing  before  and  up  to  the  time  of  the  accident,^^  and  where  he 
has  been  regularly  employed  at  the  same  employment  for  a  longer 
period  than  one  year,  are  to  be  determined  by  dividing  the  aggre- 
gate amount  of  his  earnings  for  the  year  preceding  his  death  by 
fifty-two.^^  Periods  of  slackness  in  the  trade,  which  are  incidental 
to  the  trade,  causing  a  workman's  idleness  a  part  of  the  year,  must 
be  taken  into  account  in  figuring  his  average  weekly  earnings.^* 
In  some  states,  where  he  has  been  continuously  employed  for  a  con- 
siderable period  of  time,  but  not  for  an  entire  year,  his  average 
weekly  wage  is  determined  by  dividing  the  aggregate  amount  of  his 
earnings  by  the  number  of  weeks  he  was  employed. ^^ 

result  to  the  employer  wlien  the  employ^  is  paid  by  the  piece  and  his  earnings 
are  unusually  high  at  the  time  of  injury,  and  to  the  employe  when  his  earn- 
ings are  unusually  low ;  the  correcting  of  the  defect  being  for  the  Legislature, 
not  for  the  court. 

52  Bailey  v.  Kenworthy   (1909)  1  B.  W.  C.  C.  351,  371,  C.  A. 

In  Silveria  v.  Connecticut  Quarries  Co.,  1  Conn.  Comp.  Dec.  509,  where, 
though  the  deceased  workman  had  earned  an  average  weekly  wage  of  $12.05 
during  the  13  weeks  preceding  the  injury,  he  had  been  irregularly  employed 
before  that,  and  had  not  done  or  tried  to  obtain  work  during  these  periods  of 
idleness,  the  commissioner  held  his  average  weekly  earnings  should  be  com- 
puted by  dividing  the  total  amount  earned  during  the  twenty-six  weeks  pre- 
ceding the  injury  by  IS,  the  number  of  weeks  during  some  part  of  which  he 
had  worked.  (Wk.  Comp.  Act,  pt.  B,  §  13.)  In  Cheski  v.  Connecticut  Mills 
Co.,  1  Conn.  Comp.  Dec.  213,  where  an  employe  had  worked  eighteen  days  out 
of  four  weeks,  his  average  weekly  wages  were  computed  by  dividing  the  total 
amount  earned  by  four. 

Workmen's  Compensation  Act  of  New  York,  §  15,  subd.  3.  provides  that 
compensation  for  loss  of  an  eye  shall  not  be  less  than  $5  a  week,  except 
that  "if  the  employe's  wages  at  the  time  of  the  injury  is  less  than  $5  per  week 
he  shall  receive  his  full  weekly  wages."  "Weekly  wages"  in  this  section  does 
uot  mean  average  weekly  wages  as  defined  by  section  14  to  be  1/52  of  his 
average  annual  earnings,  but  means  the  wages  actually  received,  as  defined 
by  section  3,  subd.  9.    Morey  v.  Worden,  2  N.  Y.  St.  Dep.  Rep.  494. 

53  Andrewjeski  v.  Wolverine  Coal  Co.,  1S2  Mich.  29S,  148  N.  W.  6S4;  In 
re  Anna  King,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  37.    See  §  151,  ante. 

54  White  V.  Wiseman  (1912)  5  B.  W.  C.  C.  654,  C.  A. 

55  lu  re  Elida  Baird,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  28. 


595  COMPENSATION  §    154 

The  provision  of  the  New  Jersey  Act  with  relation  to  weekly 
wages  being  taken  to  be  six  times  the  average  daily  earnings  for  a 
working  day  of  ordinary  length,  excluding  overtime,  is  confined  to 
cases  where  the  rate  of  wages  is  fixed  by  the  output  of  the  employe, 
and  does  not  apply  where  he  receives  a  fixed  wage  per  day.^°  It  has 
been  held  that  a  letter  written  by  the  authorized  agent  of  the  em- 
ployer, stating  that  the  employe's  wages  were  $11.94  a  week,  to- 
gether with  evidence  that  he  worked  seven  days  a  week  at  $1.75  a 
day,  authorized  a  finding  that  his  weekly  wage  was  $11.94.^^ 

§  153.     Daily  wages 

"Daily  earnings,"  or  wages,  when  made  the  basis  on  which  to 
compute  the  amount  of  compensation,  mean  that  which  would  be 
earned  by  working  for  the  ordinary  number  of  hours  where  the 
employment  is  by  the  hour;  no  deduction  being  made  by  reason 
of  enforced  idleness  during  some  of  these  hours,  and  nothing  be- 
ing added  because  on  some  days  the  employe  works  overtime.^* 

§  154.     Federal  Act 

"The  same  pay  as  if  he  continued  to  be  employed,"  within  the 
provision  of  the  original  federal  Act  authorizing  the  award  of  such 
pay  as  compensation,  and  yet  in  force  as  to  injuries  prior  to  the 
Act  of  1916,  means  the  same  rate  being  paid  at  the  time  of  the  in- 
jury.°^  It  includes  allowance  for  subsistence,  or  in  lieu  of  subsist- 
ence, when  the  same  forms  a  part  of  the  regular  remuneration  or 
earnings,^"  but  not  otherwise.®^     It  includes  the  right  to  any  in- 

5  6  Conners  v.  Public  Service  Electric  Co.  (N.  J.  Sup.  1916)  97  Atl,  792. 
57  Id. 

5  8  (P.  L.  1913,  p.  313)  Smolenski  v.  Eastern  Coal  Dock  Co.,  87  N.  J.  Law, 
26,  93  Atl.  85.     See,  also,  §  151,  ante. 

5  9  In  re  Sellos,  Op.  Sol.  Dept.  of  L.  3S7. 

60  In  re  Lanzy,  Op.  Sol.  Dept.  of  L.  373. 

61  "When  lodging  and  subsistence  are  not  reckoned  as  a  part  of  the  em- 
ploye's earnings,  such  employ^  is  not  entitled  to  commutation  of  subsistence 


§  154  workmen's  compensation  59G 

crease  in  the  pay  attached  to  the  injured  person's  position,  made 
after  the  injury  and  during  incapacity.®^  The  question  of  fact  as  to 
what  is  the  "same  pay"  is  ordinarily  better  determined  by  the  ad- 
ministrative and  accounting  officers  of  the  establishment  in  which 
he  is  employed  than  by  the  Secretary  of  Commerce  and  Labor.®^ 

in  fixing  the  rate  of  payment  during  incapacity.  In  re  Hurtt,  Op.  Sol.  Dept. 
of  L.  384. 

62  In  re  Hamilton,  Op.  Sol.  Dept.  of  L.  379. 

6  3  In  re  Clark,  Op.  Sol.  Dept.  of  L.  381. 


597  COMPENSATION  §   155 

ARTICLE  II 

DISABILITY  AND  INCAPACITY  FOR  WORK 
Section 

155.  'T»isability"  and  "incapacity  for  work." 

156.  Permanent  total  disability. 

157.  Permanent  partial  disability. 

158.  Temporary  total  disability. 

159.  Temporary  partial  disability. 

160.  Computation  in  case  of  previously  impaired  physical  condition. 

161.  Hernia — California. 

162.  Scheduled  injuries. 

163.  Eye. 

164.  Arm. 

165.  Hand,  fingers,  foot,  and  ankle. 

166.  Disfigurement. 

§  155.     "Disability"  and  "incapacity  for  work" 

Compensation  is  awarded  for  disability  and  incapacity  for  work, 
whether  permanent  or  temporary,  total  or  partial.®*  Since  "dis- 
ability" usually  means  more  than  mere  loss  of  earning  power,  the 
fact  that  an  injured  workman  is  employed  at  the  same  work  and 
the  same  wages  after  the  injury  as  before  will  not  disentitle  him 
to  compensation  if  his  physical  efficiency  has  been  substantially  im- 
paired.®® It  is  essential,  however,  that  there  be  some  impairment 
of  efficiency .®®     The  occupation  to  be  considered  in  making  a  dis- 

64  Compensation  should  be  provided  by  the  employer  or  his  insurer  for  all 
injuries  involving  permanent  or  temporary  disability,  whether  total  or  par- 
tial.   Wagner  v.  American  Bridge  Co.  (Sup.)  158  N.  Y.  Supp.  1043. 

6  5  (P.  L.  1911,  p.  134,  §  2)  Burbage  v.  Lee,  87  N.  J.  Law,  36,  93  Atl.  859; 
De  Zeng  Standard  Co.  v.  Pressey,  86  N.  J.  Law,  469,  92  Atl.  278;  Galley  v. 
Peet  Bros.  Mfg.  Co.,  98  Kan.  53,  157  Pac.  431. 

6  6  This  legislation  does  not  cover  injuries  having  no  tendency  to  impair  the 
efficiency  of  the  employ^  in  his  occupation,  as  where  an  employe's  ear  was  bit- 
ten by  a  horse  and  its  amputation  became  necessary.  Shinnick  v.  Clover 
Farms  Co.,  169  App.  Div.  236,  154  N.  Y.  Supp.  423. 

An  employ^  who  has  suffered  no  loss  other  than  two  teeth,  which  have  been 


§  155  workmen's  compensation  598 

ability  rating  is  usually  that  at  which  the  employe  was  engaged  at 
the  time  of  the  injury.''^  Under  some  Acts,  recovery  is  allowed  for 
total  disability  because  the  employe  was  unfitted  by  his  injury  to 
follow  the  occupation  in  which  he  was  engaged  when  injured,  al- 
though it  is  shown  without  dispute  that  he  was  capable  of  earning 
substantial  wages  in  other  occupations.®^ 

replaced  by  the  employer,  is  not  entitled  to  any  compensation.  Kandalets  v. 
Swift  &  Co.,  Bulletin  No.  1,  111.,  p.  24. 

Wliere  the  employ^  was  incapacitated  for  work  for  a  time  by  straining  his 
left  shoulder  while  he  was  pushing  on  a  piece  of  joist  in  order  to  remove  a 
safe,  but  there  was  no  restriction  in  his  power  to  use  the  injured  shoulder 
or  arm,  or  in  its  field  of  motion,  at  the  time  of  the  hearing,  the  employe  was 
denied  compensation.  Robson  v.  Travelers'  lusur.  Co.,  2  Mass.  Wk.  Comp. 
Cases,  235  (decision  of  Com.  of  Arb.). 

"The  Compensation  Act  does  not  attempt  to  compensate  the  applicant  for 
the  loss  of  his  fingers,  nor  for  his  pain  and  suffering.  It  merely  considers  him 
as  a  workman,  and  provides  him  with  competent  medical  attention,  *  *  * 
and  compensates  him  for  G5  per  cent,  of  his  loss  of  wage."  Janiec  v.  Mitchell- 
Lewis  Motor  Co.,  Bui.  Wis.  Indus.  Com.,  1912-13,  p.  30. 

6  7  Felsen  v.  Atchison,  Topeka  &  S.  F.  Ry.  Co.,  3  Cal.  I.  A.  C.  Dec.  11. 

In  computing  the  average  annual  earnings  of  a  machinist,  who,  while  work- 
ing as  such  machinist,  has  sustained  injury  to  his  hand,  resulting  in  the  loss 
of  his  ability  to  play  and  teach  the  violin,  whereby  he  had  earned  considerable 
in  addition  to  his  wages  as  machinist,  such  earnings  must  be  disregarded ;  the 
Act  not  contemplating  compensation  except  upon  the  basis  of  earnings  in  the 
industry  In  which  injury  occurs.     Id. 

The  award  of  compensation  must  be  based  on  disability  and  loss  of  wages 
as  applied  to  the  employment  in  which  the  applicant  was  performing  service 
at  the  time  of  his  injury.  Winters  v.  Mcllen  Lumber  Co.,  Bui.  Wis.  Indus. 
Com.  vol.  1,  p.  89.  Disability  of  a  common  laborer  must  be  considered  in 
regard  to  his  being  able  to  go  back  to  work  as  a  common  laborer  in  the  va- 
rious kinds  of  work  pertaining  to  that  employment  Janiec  v.  Mitchell-Lewis 
Motor  Co.,  Bui.  W^is.  Indus.  Com.  1912-13,  p.  30. 

The  ability  of  the  workman  to  do  the  exact  work  for  which  he  had  been 
employed  at  the  time  of  the  injury  is  not  the  sole  measure  of  disability;  the 
nature  of  the  physical  injury  or  disfigurement  and  the  workman's  age  may 
also  be  considered.  Frankfort  General  Ins.  Co.  v.  Pillsbury  (Cal.)  159  Pac. 
150. 

6s  International  Harvester  Co.  v.  Indus.  Com.,  157  Wis.  1G7,  147  X.  W.  53, 
Ann.  Cas.  1916B,  330. 


599  COMPENSATION  §   155 

"Incapacity  for  work"  means  loss  of  earning  power  as  a  work- 
man in  consequence  of  the  injury,  whether  the  loss  manifest  itself 
in  inability  to  perform  such  work  as  may  be  obtainable,  or  inabil- 
ity to  secure  work  to  do,®'  or  inability  to  reach  his  place  of  work.'^° 

6  9  Gorrell  v.  Battelle,  93  Kan.  370,  144  Pac.  244.  What  the  Legislatures 
had  in  mind  was  compensation  for  loss  of  earning  capacity  as  a  workman  as 
a  result  of  injury.  Whether  this  loss  manifest  itself  in  inability  to  perform 
work  which  is  obtainable  or  inability  to  secure  work  to  do  is  not  very  mate- 
rial. While  personal  injury  must  occur,  when  the  word  "incapacity"  is  not 
expressly  qualified  by  the  use  of  the  word  "physical"  in  the  statute,  depriva- 
tion of  power  to  earn  wages  as  a  workman  as  a  result  of  injury  is  incapacity 
within  the  meaning  of  the  law.  Id.  "Incapacity  for  work"  means  no  more 
than  inability  to  earn  wages,  or  full  wages,  as  the  case  may  be,  at  the  work 
in  which  the  injured  workman  was  employed  at  the  time  of  the  accident. 
Duprey  v.  Maryland  Casualty  Co.,  219  Mass.  189,  106  N.  E.  6S6 ;  Ball  v.  Wil- 
liam Hunt  &  Sons,  Ltd.,  5  B.  W.  C.  0.  459;  McDonald  v.  Wilsons  &  Clyde 
Coal  Co.,  Ltd.,  5  B.  W.  C.  C.  478;  Gillen's  Case,  215  Mass.  96,  102  N.  E.  346, 
L.  R.  A.  1916A,  371.  Inability  to  obtain  work  resulting  directly  from  a  per- 
sonal injury  is  an  incapacity  for  work  within  the  meaning  of  this  act,  though 
a  like  inability  resulting  from  some  other  cause,  such  as  an  altered  condition 
of  the  labor  market,  would  not  be  so.  The  inability  to  get  work  is  evidence 
tending  to  show  an  incapacity  for  work,  though  it  will  not  always  be  con- 
clusive. In  re  Sullivan,  218  Mass.  141,  105  N.  E.  463,  L.  R.  A.  1916A,  378; 
Radclifee  v.  Pacific  Steam  Navigation  Co.,  [1910]  1  K.  B.  685;   Cardiff  v.  Hall, 

4  B.  W.  C.  C.  159,  [1911]  1  K.  B.  1009;  Brown  v.  J.  J.  Thomecroft  &  Co.,  Ltd., 

5  B.  W.  C.  C.  886;  Ball  v.  William  Hunt  &  Sons,  Ltd.,  supra  (overruling  1 
K.  B.  1048) ;  McDonald  v.  WUsons  &  Clyde  Coal  Co.,  supra.  Where  the  injury 
necessitated  amputation  of  the  employe's  arm,  he  was  entitled  to  compensa- 
tion for  a  total  incapacity  for  work  during  the  entire  time  that  he  was  out 
of  work,  though  during  a  portion  of  that  time  he  was  physically  able  to  work, 
but  on  account  of  being  a  one-armed  man  was  unable  to  procure  work.  (St. 
1911,  c.  751,  pt.  2,  §  9)  In  re  Sullivan,  supra.  Where  an  injured  employ^  has 
been  unable  after  repeated  efforts  to  get  an  opportunity  to  earn  wages,  a  find- 
ing that  his  earning  capacity  is  gone,  and  that  therefore  he  is  under  an  "in- 
capacity for  work,"  is  warranted,  though  he  has  a  physical  capacity  to  work 
and  earn  money.  Duprey  v.  Maryland  Casualty  Co.,  supra.  Where  the  dis- 
ability of  the  employs  is  of  such  a  character  as  to  interfere  with  his  ability  to 
secure  employment,  as  distinguished  from  his  ability  to  do  work,  such  dis- 

7  0  Where  a  workman  fractured  his  ankle,  and  although  otherwise  in  good 
health,  could  not  walk  to  his  work,  such  inability  was  held  to  constitute  total 
incapacity.  Beddard  v.  Stanton  Ironworks  Co.,  Ltd.  (1913)  6  B.  W.  C.  C. 
627,  C.  A, 


§  155  workmen's  compensation  600 

This  expression  was  taken  from  the  English  Workmen's  Compen- 
sation Act  of  1906,  in  which  it  was  provided  that  the  amount  of 
compensation   to  be   paid   "where   total  or  partial  incapacity  for 

ability  is  compensable,  and  the  Commission  has  decided  on  a  form  of  condi- 
tional award  to  include  and  provide  for  such  disability.  Rally  v.  Island 
Transportation  Co.,  2  Cal.  I.  A.  C.  Dec.  60S. 

Where  as  a  result  of  the  injury  the  employe's  opportunity  to  obtain  work 
had  been  so  narrowed  that  he  found  it  impossible  to  get  any  employment, 
and  his  ability  to  earn  had  been  thereby  rendered  negligible,  the  possibility 
of  his  obtaining  work  being  so  remote,  and  the  market  for  workmen  of  Ms 
capacity  for  performing  work  so  inaccessible,  that  he  was  to  all  intents  and 
purposes,  at  least  for  some  time,  totally  incapacitated  for  work,  he  was  award- 
ed total  incapacity  compensation.  Gillen  v.  Ocean  Accident  &  Guarantee 
Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  812  (decision  of  Indus.  Ace.  Bd.).  The 
employe  lost  his  arm  by  accident,  and  for  a  period  of  five  months,  from  May 
31  to  October  25,  did  not  work.  He  diligently  endeavored  to  secure  employ- 
ment, but  was  unable  to  do  so  because  of  the  loss  of  his  arm.  He  obtained  a 
position  as  watchman  on  October  26  at  an  average  weekly  wage  of  $15.  The 
evidence  showed  that  on  May  31  he  was  capable  of  performing  the  work  which 
he  finally  procured,  or  any  work  which  a  one-armed  man  could  ordinarily  per- 
form. It  was  held  that  the  employe  was  totally  incapacitated  for  work  during 
the  period  from  May  31  to  October  25.  Sullivan  v.  American  Mutual  Liability 
Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  435  (decision  of  Com.  of  Arb.,  affirmed 
by  Indus.  Ace.  Bd.,  also  by  Sup.  Jud.  Ct.,  218  Mass.  141,  105  N.  E.  463,  L.  R. 
A.  1916A,  378).  The  employe,  a  foreman,  had  his  right  hand  crushed,  the 
first  and  second  fingers  severed,  and  the  hand  otherwise  so  mutilated  that  it 
would  never  be  useful.  Practically  the  only  work  which  he  could  do  was 
that  of  foreman,  the  position  which  he  held  when  he  was  injured,  and  which 
he  again  expected  to  obtain  when  contracting  business  improved.  Because  of 
the  mutilation  of  his  hand  he  could  not  find  employment  as  a  blacksmith,  his 
previous  occupation;  nor  was  he  able,  on  account  of  the  injury,  to  obtain 
any  other  work.  He  was  entitled  to  compensation  on  the  basis  of  total  in- 
capacity for  work.  Brennan  v.  Travelers'  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cas- 
es, 503  (decision  of  Com.  of  Arb.).  An  employ§  received  a  personal  Injury, 
necessitating  the  severance  of  two  fingers  of  the  right  hand,  and  was  subse- 
quently furnished  work  which  he  was  unable  to  perform.  He  was  there- 
upon discharged,  and  the  insurer  declined  to  pay  compensation.  The  em- 
ploy§  seai-ched  diligently  for  work,  but  was  unabJe  to  obtain  any  which  he 
could  do  because  of  the  incapacity  due  to  the  injury.  He  was  held  entitled 
to  compensation  on  the  basis  of  total  incapacity.  Krulla  v.  Casualty  Co.  of 
America,  2  Mass.  Wk.  Comp.  Cases,  409  (decision  of  Com.  of  Arb.). 

Where  a  workman  who  had  been  partially  incapacitated  was  doing  light 


601  COMPENSATION  §  155 

work"  resulted  from  the  injury  should  be  certain  weekly  payments. 
Accordingly  decisions  of  the  English  courts  fixing  the  meaning 
there  to  be  given  to  these  words  are  of  great  weight.'^^  The  same 
words  were  used  in  an  earlier  English  statute,  and  it  was  held  by 
the  Court  of  Appeals  that  the  object  of  the  Act  was  to  give  com- 
pensation for  an  inability  to  earn  wages,  and  that  if  an  injured  em- 
ploye, after  repeated  efforts,  could  not  get  an  opportunity  to  earn 
wages,  a  finding  that  his  earning  power  was  gone,  and  that  there- 
fore he  was  under  an  "incapacity  for  work,"  was  warranted,  though 
he  had  a  physical  capacity  to  work  and  earn  money. ''^  There  is 
incapacity  for  work  when  a  man  has  a  physical  defect  which  makes 
his  labor  unsalable  in  any  market  reasonably  accessible  to  him,  and 
there  is  partial  incapacity  for  work  when  such  a  defect  makes  his 
labor  salable  for  less  than  it  would  otherwise  bring.'^^  Incapacity 
refers  to  inability  to  get  work  in  the  open  market,  and  not  to 
whether  the  workman  is  receiving  the  same  wages  as  before  the 
accident.'^*     The  question  is :    Was  the  workman  left  in   such  a 

work  for  his  employers  and  receiving  part  compensation,  and,  being  then 
dismissed,  was  unable  to  find  work  in  the  district,  the  incapacity  included  the 
loss  due  to  the  inability  to  obtain  work.  McDonald  v.  Wilsons  &  Clyde  Coal 
Co.,  Ltd.  (1912)  5  B.  W.  C.  C.  478,  H.  L, 

71  In  re  Sullivan,  218  Mass.  141,  105  N.  E.  463,  L,  R,  A.  1916A,  378;  In 
re  Hunnewell  (1915)  220  Mass.  351,  107  N.  E.  934. 

72  Clark  V.  Gas.  Light  &  Coke  Co.,  21  L.  T.  R.  184. 

73  Ball  V.  Hunt  &  Sons,  Ltd.  (1912)  5  B.  W.  C.  C.  462. 

Where  a  county  court  judge  granted  full  compensation  for  a  period  during 
which  a  collier  who  had  ruptured  himself  waited  for  a  vacancy  at  the  hos- 
pital and  an  operation,  refusing,  on  medical  advice,  to  work  during  that  pe- 
riod, the  judge  saying  that  he  had  acted  reasonably,  it  was  held  to  be  a  mis- 
direction, since  the  question  was  not  one  of  reasonableness,  but  of  capacity 
to  work.     Evans  v.  Cory  Bros.  &  Co.,  Ltd.  (1912)  5  B.  W.  C.  C.  272,  C.  A. 

7  4  The  statutory  test  is  earning  capacity,  and  if  it  should  appear  upon  the 
facts  that  the  workman's  earning  capacity  is  less  after  than  it  was  before 
or  at  the  time  of  the  accident,  it  seems  that  he  might  have  a  claim  even  if 
he  was  in  fact  receiving  the  same  wages  at  the  two  periods.  Freeland  v.  Mac- 
farlane,  Lang  &  Co.  (1900)  2  F.  832,  Ct.  of  Sess.  (Act  of  1S97). 

A.  boy  workman,  who  had  been  injured,  was  paid  more  by  the  same  em- 


§  155  workmen's  compensation  602 

position  that  in  the  open  market  his  earning  capacity  might  in  the 
future  be  less  than  it  was  before  tlie  accident,  as  a  result  of  the  ac- 
cident? ^^ 

Incapacity  may  be  a  nervous  or  mental  condition,  provided  it  be 
such  as  an  average  reasonable  man  would  not  have  overcome.''^ 

ployers  for  doing  nondescript  work  than  he  had  made  before  the  accident  hap- 
pened, but  a  suspensory  award  was  nevertheless  made.  Id.  Where  a  ship's 
fireman  was  unable  to  use  a  hammer  because  of  the  loss  of  a  finger  by  acci- 
dent, and  was  held  to  be  permanently  partially  incapacitated,  and  his  em- 
ployers, seven  months  after  rehiring  him  as  a  fireman  at  full  wages,  applied 
to  terminate  compensation,  it  was  held  that  his  incapacity  had  not  ceased, 
but  was  permanent.  Warwick  Steamship  Co.  v.  Callaghan  (1912)  5  B.  W.  C. 
C.  283,  C.  A.  Where  a  workman  who  had  been  permanently  injured  was  re- 
employed by  his  former  employers  to  do  some  light  work,  and  was  paid  more 
than  he  had  received  before,  but  was  prevented  by  heart  disease  from  con- 
tinuing this  work,  he  was  still  incapacitated  by  his  injury.  Cory  Bros.  & 
Co.,  Ltd.,  V.  Hughes  (1911)  4  B.  W.  C.  C.  291.  In  a  case  where  a  workman 
who  had  been  injured  was  taken  back  at  his  old  wages  by  his  employers, 
and  they  then  applied  to  terminate  the  weekly  compensation,  which  had  been 
reduced  to  Id.  a  week  by  registered  agreement,  it  was  held  that  incapacity 
refers  to  inability  to  get  work  in  the  open  market,  and  not  to  whether  he  is 
receiving  the  same  wages  as  befoi'e  the  accident.  Birmingham  Cabinet  Mfg. 
Co.  v.  Dudley  (1910)  3  B.  W.  C.  C.  169,  C.  A.  Cozens-Hardy,  M.  R.,  said :  "The 
question  which  the  judge  put  to  himself  appears  to  have  been :  Was  this 
man  able  to  earn  the  same  wages  as  he  did  before  the  accident?  I  do  not 
think  that  was  the  right  question.  The  question  should  have  been:  Is  he 
hampered  in  the  labor  market  by  reason  of  the  accident?  Is  he  not  less 
likely  to  secure  employment?  If  he  is,  it  would  not  be  right  to  disentitle  him 
from  ever  saying  that  his  capacity  was  diminished  by  reason  of  the  acci- 
dent,"   Id. 

Where  an  injured  employ^  has  recovered,  so  that  he  is  only  partially  dis- 
abled physically  from  doing  work,  but  the  remaining  disability  substantially 
prevents  him  from  competing  in  the  open  labor  market,  his  disability  is  to 
be  considered  as  total.  Lindh  v.  Toyland  Co.,  Inc.,  2  Cal.  I.  A.  C.  Dec.  646. 
Where  an  employ§  is  partially  able  physically  to  perform  remunerative  tasks, 
but  because  of  deformity  and  inability  to  satisfy  prospective  employers,  due 
to  his  injury,  is  totally  disabled  from  earning  a  livelihood,  he  should  be 
awarded  total  disability  indemnity.  Cohnhoff  v.  Thomas  &  Schneider  Art 
Glass  Co.,  2  Cal.  I.  A.  C.  Dec.  564. 

7  5  Birmingham  Cabinet  Mfg.  Co.  v.  Dudley  (1910)  3  B.  W.  C.  C.  169,  C.  A. 

7  0  Cozens-Hardy,  M.  R.,  has  said:  "The  effects  of  an  accident  are  at  least 
two  fold:     They  may  be  merely  muscular  effects — they  almost  always  must 


003  COMPENSATION  §   155 

That  the  employe,  but  for  want  of  sufficient  will  power,  could  have 
thrown  off  the  nervous  condition  which  followed  the  injury,  will 
not  deprive  him  of  the  right  to  compensation  for  such  condition." 

include  muscular  effects — and  there  may  also  be,  and  very  frequently  are,  ef- 
fects which  you  may  call  mental,  or  nervous,  or  hysterical.  I  cannot,  for  the 
moment,  think  which  is  the  proper  word  to  use  in  respect  to  them.  The  ef- 
fects of  this  second  class,  as  a  rule,  arise  as  directly  from  the  accident  which 
the  workman  suif ered  as  the  muscular  effects  do ;  and  it  seems  to  me  entirely 
a  fallacy  to  say  that  a  man's  right  to  compensation  ceases  when  the  muscular 
mischief  is  ended,  but  the  nervous  or  hysterical  effects  still  remain."  Eaves 
V.  Blaenclydach  Colliery  Co.,  Ltd.  (1910)  2  B.  W.  C.  C.  329,  C.  A. 

An  injured  workman  recovered  as  far  as  his  muscular  condition  was  con- 
cerned, but  still  honestly  believed  he  was  unable  to  work;  it  was  held  that 
he  was  still  incapacitated.  Id.  A  workman  who  sustained  a  nervous  shock 
while  assisting  an  injured  fellow  workman,  and  was  unable  to  work,  was 
held  to  be  incapacitated.  Yates  v.  South  Kirby,  Featherstone  and  Hemsworth 
Collieries,  Ltd.  (1910)  3  B.  W.  C.  C.  418,  C.  A.  Where,  in  a  case  based  on 
an  injury  to  a  ship  painter's  eye,  the  medical  testimony  was  conflicting,  and 
the  medical  referee  said  that  if  the  man  was  telling  the  truth  it  was  a  case 
of  hysterical  blindness,  it  was  held  there  was  evidence  to  support  a  finding 
of  total  incapacity.  James  v.  Morley,  Carver  &  Co.,  Ltd.  (1913)  6  B.  W.  C.  C. 
680,  C.  A.  Where  a  workman  was  in  a  hospital  for  a  week  as  a  result  of  a 
fall,  and  on  being  discharged  did  light  work  for  five  weeks,  and  then  had  t6 
go  to  an  infirmary  for  three  months,  being  discharged  from  there  in  a  ner- 
vous, hysterical  condition,  which  rendered  him  incapable  of  working,  it  was 
held  there  was  evidence  to  support  a  finding  of  neurasthenia  caused  by  the 
accident.  Morris  v.  Turford  &  Southward  (1913)  6  B.  W.  C.  C.  G06,  C.  A. 
Where  a  workman  suffering  from  neurasthenia  gave  up  as  soon  as  his  heart 
failed  him,  whereas  he  would  probably  have  recovered  if  he  had  kept  on  work- 
ing, the  incapacity  did  not  result  from  the  accident.  Price  v,  Brunyeat,  Brown 
&  Co.  (1910)  2  B.  W.  0.  C.  337,  C.  A.  Where  an  injured  workman  returned  to 
his  work,  and  eighteen  months  later  quit  work  because  of  nervousness  caused 
by  the  accident,  but  which  an  average  reasonable  man  could  have  overcome, 
it  was  held  that  he  was  not  incapacitated.  Turner  v.  Brooks  &  Doxey,  Ltd. 
(1910)  3  B.  W.  C.  C.  22,  C.  A.  Where  an  injured  man  had  recovered  his  phy- 
sical condition,  and  was  quite  fit  for  his  work,  but  from  brooding  over  the 
accident  had  lost  the  courage  to  persevere  at  his  work,  and  applied  for  an  in- 
crease of  a  nominal  award,  it  was  held  that  his  incapacity  had  ceased.  Holt 
V.  Yates  &  Thorn  (1910)  3  B.  W.  C.  C.  75,  C.  A. 

7  7  In  re  Hunnewell,  220  Mass.  351,  107  N.  E.  934. 

A  hod  carrier  was  carrying  a  hod  of  bricks  on  his  shoulder  when  the  ele- 
vator upon  which  he  was  standing  suddenly  fell  a  distance  of  five  stories; 


§  155  workmen's  compensation  604; 

Mere  inability  to  obtain  work  does  not  conclusively  show  in- 
capacity.^^ The  applicant  must  establish  the  fact  of  disability,  and 
show  that  his  inability  to  earn  as  much  as  he  was  earning  at  the 
time  of  the  injury  was  the  result  of  the  injury,  and  not  because  work 
is  scarce  and  hard  to  find.  Compensation  is  payable  for  inability  to 
do  work,  not  for  inability  to  find  work  to  do.^® 

Discharge  for  lack  of  work  does  not  constitute  disability. *° 
Whether  the  discharge  of  an  injured  workman,  who  has  been  re- 
employed, has  any  bearing  on  the  right  to  compensation,  depends 
on  whether  the  discharge  was  due  to  a  condition  resulting  from  the 

he  being  very  much  bruised  on  his  chest,  back,  and  side,  and  suffering  from 
a  nervous  shock  and  disturbance  in  consequence.  The  qu;'stion  of  malingering 
was  raised  by  the  insurer,  and  an  impartial  physician  m  is  called  upon  to 
examine  the  employ^  and  report.  He  reported :  "That  he  took,  and  until  to- 
day, has  taken,  his  pains  too  seriously,  is  beyond  question;  but  such  a  mis- 
interpretation is  a  very  natural  consequence  of  his  unpleasant  experience, 
and  so,  I  think,  he  is  not  malingering."  The  employ^  was  held  entitled  to 
compensation.  Diaz  v.  Contractors'  Mut.  Liab.  Insur.  Co.,  2  Mass.  Wk.  Comp. 
Cases,  150  (decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.,  also  by  Sup. 
Jud.  Ct.,  217  Mass.  36,  101  N.  E.  384). 
See  §  95,  ante. 

7  8  An  employs  fell  on  the  stairs  of  the  factory  in  which  he  was  employed, 
striking  on  his  back  and  being  incapacitated  for  twenty-one  days.  About 
four  months  after  the  injury  the  factory  shut  down  and  the  employ^  was 
unable  to  obtain  any  employment  from  the  date  of  the  shut-down,  April  8,  to 
June  18,  when  he  secured  a  position  at  which  he  earned  a  higher  wage  than 
at  the  time  of  the  injury.  He  claimed  compensation  for  the  period  during 
which  he  was  unable  to  find  employment.  He  had  suffered  prior  to  the  injury 
from  the  after  eft'ects  of  a  disease  of  childhood,  and  ah  impartial  physician 
reported  that  he  had  wholly  recovered  from  the  effects  of  the  injury.  Not 
having  any  physical  incapacity  due  to  the  injury,  he  was  not  entitled  to  com- 
pensation because  of  inability  to  obtain  work.  Tremblay  v.  Travelers'  Insur. 
Co.,  2  Mass.  Wk.  Comp.  Cases,  156  (decision  of  Com.  of  Arb.). 

Where  an  injured  workman,  who  had  been  receiving  part  wages  and  part 
compensation,  was  discharged,  the  mere  fact  that  he  could  not  obtain  employ- 
ment elsewhere  did  not  show  incapacity  which  entitled  him  to  more  compen- 
sation.    Dobby  V.  Wilson,  Pease  &  Co.  (1910)  2  B.  W.  C.  C.  370,  C.  A. 

7  9  Winn  V.  Small,  1  Cal.  I.  A.  C.  Dec.  5. 

80  Lough  V.  Standard  Oil  Co.,  1  Cal.  I.  A.  C.  Dec.  41. 


605  COMPENSATION  §   155 

injury,  or  to  some  other  cause,  such  as  misconduct  of  the  work- 
man.®^ While  no  burden  rests  on  the  employer,  such  as  relieves 
the  employe  from  seeking  suitable  employment,  to  obtain  employ- 
ment for  him,^^  yet  where  the  injury  is  of  a  nature  tending  to  af- 
fect the  ability  to  obtain  work,  an  employer  seeking  to  reduce 
compensation,  or  be  relieved  therefrom,  must  prove  that  suitable 
employment  can   be   obtained. ^^      On   this   subject   Commissioner 

81  A  carpenter  had  the  thumb,  forefinger,  and  little  finger  of  his  left  hand 
cut  off  by  a  circular  saw  which  he  was  operating.  He  obtained  work  at  differ- 
ent times  after  the  injury,  but  was  discharged  as  soon  as  his  employers  no- 
ticed his  hand  and  found  that  he  was  unable  to  perform  the  work  given  him. 
He  was  entitled  to  compensation  on  account  of  total  incapacity  for  work. 
McDonald  v.  Travelers'  Insur.  Co.,  2  Mass.  Wk.  Comp,  Cases,  224  (decision  of 
Com.  of  Arb.). 

Where  a  waitress  suffered  an  injury  to  the  index  finger  of  her  right  hand, 
which  left  it  stiff,  and  on  returning  to  her  employment  was  grumbled  at  be- 
cause the  stiff  finger  made  her  clumsy,  and  left,  there  was  compensable  in- 
capacity resulting  from  the  injury.  Ward  v.  Miles  (1911)  4  B.  W.  C.  C.  182, 
C.  A.  But  where  a  workman,  after  a  permanent  injury,  was  taken  back  by 
his  employers  at  higher  wages  than  before,  and  then  later  dismissed  for  mis- 
conduct, there  was  no  incapacity  resulting  from  the  injury.  Hill  v.  Ocean 
Coal  Co.,  Ltd.  (1910)  3  B.  W.  C.  C.  29,  C.  A.  Where  a  workman,  after  the 
loss  of  one  eye,  was  re-employed  at  his  former  wages,  and  was  later  discharg- 
ed for  alleged  misconduct,  but  there  was  really  incapacity  resulting  from  the 
accident,  compensation  must  be  awarded.  White  &  Sons  v.  Harris  (1911)  4 
B.  W.  C.  C.  39,  C.  A. 

82  Where  a  trial  judge  found  that  a  workman  who  had  lost  his  right  arm 
was  physically  able  to  do  light  work,  and  from  his  own  knowledge  of  labor 
conditions  in  the  district  knew  that  the  workman  could  get  such  work  if  he 
tried,  the  amount  of  compensation  was  rightly  reduced.  Silcock  &  Sons  v. 
Golightly  (1915)  8  B.  W.  C.  C.  48,  C.  A.  Where  a  miner  so  far  recovered  from 
nystagmus  that  he  was  able  to  do  light  work,  but  would  make  no  effort  to 
get  it,  his  compensation  was  reduced.  Williams  v.  Ruabon  Coal  &  Coke  Co., 
Ltd.  (1914)  7  B.  W.  C.  C.  202,  C.  A.  Cozens-Hardy,  M.  R.,  said:  "The  man 
says,  in  effect,  'It  is  for  you,  the  employers,  to  find  me  light  work.'  I  re- 
pudiate that  way  of  putting  it  entirely ;  there  is  no  principle  of  law  to  sup- 
port it."     Id. 

8  3  The  court  refused  to  terminate  compensation,  because  the  employer's 
burden  in  this  respect  was  not  discharged,  where  a  boy  working  as  a  cabinet 
maker's  apprentice,  after  having  his  hand  mutilated,  found  work  as  an  er- 


§  155  workmen's  compensation  GOG 

Chandler,  of  Connecticut,  said:  "Employers  generally  recognize 
the  moral  obligation  to  find  employment  for  employes  more  or  less 
debilitated  from  injury,  at  the  earliest  possible  moment,  usually 
permitting  them  to  resume  work  for  the  first  few  days  under  fav- 
orable conditions.  This  practice  should  be  encouraged,  and  fail- 
ure to  observe  it  without  good  cause  should  be  given  such  adverse 
consideration  as  the  other  evidence  and  the  circumstances  of  the 
case  justify."  ®*  Where  pending  litigation  a  workman's  employers 
offer  him  work,  which,  however,  is  not  for  any  certain  period  and 
not  permanent,  such  an  offer  has  little  significance  in  determining 

rand  boy  at  higher  wages  than  he  had  received  before,  but  was  soon  dis- 
charged for  misconduct,  and  his  former  employer  did  not  show  that  work 
was  procurable  (Wilson  v.  Jackson's  Stores,  Ltd.  [1905]  7  W.  C.  C.  122,  C. 
A.);  where,  although  a  mason's  laborer,  who  had  one  eye  injured,  could  do 
work  which  did  not  require  two  eyes  for  safety,  but  was  nevertheless  unfitted 
for  his  former  occupation,  and  there  was  no  evidence  that  such  work  could 
be  obtained  (Bryce  &  Co.  v.  Connor  [1905]  7  F.  193,  Ct.  of  Sess.  [Act  of  1S97]) ; 
where  the  employers  showed  that  the  workman  was  physically  able  to  do 
light  work,  but  not  that  he  could  obtain  any  (Proctor  &  Sons  v.  Robinson 
[1910]  3  B.  W.  C.  C.  41,  C.  A.) ;  where  a  coal  porter  in  a  gasworks  was  per- 
manently incapacitated  by  an  accident  which  took  off  four  fingers,  and  failed 
in  his  efforts  to  get  other  work  (Clark  v.  Gaslight  &  Coke  Co.  [1905]  7  W. 
C.  C.  119,  C.  A.);  and  where  a  ship  painter's  eye,  which  had  been  injured,  re- 
tained only  15  per  cent,  of  normal  vision,  and  his  other  eye  was  poor,  so  that 
he  was  incapacitated  for  scaffold  work,  and  his  employers  did  not  prove  that 
he  was  able  to  obtain  work  (James  v.  Mordey,  Garner  &  Co.,  Ltd.  [1913]  6  B. 
W.  C.  C.  680,  C.  A.). 

But  it  has  been  held  that  where  a  workman's  employers,  on  application 
for  review,  showed  that  the  man  was  fit  to  do  any  kind  of  light  work,  their 
burden  was  discharged,  although  there  was  evidence  that  he  had  failed  in 
several  efforts  to  obtain  employment.  Cardiff  Corporation  v.  Hall  (1911)  4  B. 
W.  C.  C.  159,  C.  A.  And  where  an  injured  workman  was  re-employed  by  his 
former  employers,  but  was  idle  for  four  days  during  a  labor  strike,  which 
made  it  impossible  for  his  employers  to  find  work  for  all  their  regular  staff, 
and  claimed  compensation  for  the  four  days  on  the  ground  that  his  injury  pre- 
vented him  from  getting  work  elsewhere,  but  the  trial  judge  found  no  such 
incapacity,  his  claim  was  refused.  Woodhouse  v.  Midland  Ry.  Co.  (1914)  7 
B.  W.  C.  C.  690,  C.  A. 

84  Naruk  v.  Main,  1  Conn.  Comp.  Dec.  48. 


607  COMPENSATION  §    155 

his  probable  future  earnings. ^^  Where  it  appears  that  the  employe 
was  totally  incapacitated,  the  award  cannot  be  reduced  because  he 
has  not  attempted  to  obtain  employment.^*'  But  he  cannot,  by  act- 
ing on  unwise  advice  and  refusing  work  suitable  to  his  condition, 
improve  his  right  to  compensation.^'^  Inability  resulting  from  idle- 
ness is  not  compensable  incapacity,  though  the  idleness  originated 
in  an  injury,**  unless  the  continued  idleness  is  due  to  inability,  as 
a  consequence  of  the  injury,  to  obtain  work,*^     The  fact  that  an 

85  Giachas  v.  Cable  Co.,  190  111.  App.  285. 

8<5  (Laws  1911,  e.  751)  In  re  Septimo,  219  Mass.  430,  107  N.  E.  63. 

87  Where  a  workman  unreasonably  refused  light  work  on  account  of  un- 
wise medical  advice  and  the  domination  of  his  wife,  there  was  no  incapacity 
resulting  from  the  injury,  and  the  judge  on  review  terminated  the  payments. 
Higgs  &  Hill,  Ltd.,  v.  Unicume  (1903)  6  B.  W.  C.  C.  205,  C.  A.  Where  a  ship's 
fireman  refused  a  light  job  offered  him  a  year  after  an  injury  to  his  hand, 
without  even  going  to  see  what  it  was,  and  where  he  would  have  recovered 
by  the  date  of  the  arbitration  if  he  had  accepted,  it  was  held  there  was  no 
incapacity  resulting  from  the  injury.  Furness,  Withy  &  Co.  v.  Bennett  (1910) 
3  B.  W.  C.  C.  195,  C.  A. 

But  where  an  employ^  with  a  slight  injury  to  one  hand  was  offered  light 
work,  which  he  refused  to  do,  but  it  did  not  clearly  appear  that  it  had  been 
determined  by  his  physician  that  he  was  able  to  do  light  work  yet,  or  that  he 
understood  he  was  to  go  to  work  until  his  physician  had  so  advised,  the  of- 
fer of  work  was  indefinite  and  misunderstood  by  the  employ^  and  did  not  de- 
prive him  of  compensation  for  the  disability.  McKnight  v.  American  Can 
Co.,  2  Cal.  I.  A.  C.  Dec.  427. 

88  Where,  upon  the  stopping  in  1910  of  the  payments  to  a  workman  injured  , 
in  1907,  he  took  proceedings,  and  it  was  found  that  long  idleness  was  the  cause 
of  his  inability,  it  was  held  the  incapacity  did  not  result  from  the  injury. 
David  V.  Windsor  Steam  Coal  Co.  (1911)  4  B.  W.  C.  C.  177,  C.  A.  Where  it 
w^as  found,  on  an  application  to  review  compensation,  that  the  workman's 
inability  was  due  to  lack  of  condition,  caused  by  a  long  period  of  idleness, 
it  was  held  that  incapacity  was  not  resulting  from  the  injury,  and  compensa- 
tion was  reduced  to  Id.  a  week.  Upper  Forest  &  Worcester  Steel  &  Tinplate 
Co.,  Ltd.,  V.  Grey  (1910)  3  B.  W.  C.  C.  424,  C.  A. 

89  Where  an  injured  collier  would  probably  have  recovered  if  he  could  have 
done  light  work,  but  his  efforts  to  obtain  it  met  with  no  success,  there  was 
incapacity  resulting  from  accident.  Bonsall  v.  Midland  Colliery  Owners'  Mut. 
Indemnity  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  613,  C.  A. 


§  155  workmen's  compensation  608 

employe  was  placed  in  jail  after  the  injury  does  not  bar  recovery 
of  compensation,  if  he  was  incapacitated  from  performing  his  reg- 
ular duties  by  reason  of  the  accident  during  that  time.®** 

That  the  employe  is  a  man  of  failing  physical  powers,  and  proba- 
bly will  be  incapacitated  for  work  in  a  few  years,  as  a  result  of  such 
physical  weakness,  independently  of  his  injury,  does  not  bar  him 
from  compensation  for  total  disability  if  his  incapacity  to  work  is 
the  result  of  his  injuries.®'  But  the  California  Commission  has  held 
that  where  an  aged  employe  is  injured  by  a  fall,  sustaining  the  frac- 
ture of  several  ribs,  as  well  as  bruises  and  contusions,  and  after 
the  physical  injuries  caused  by  the  fall  have  healed  it  is  found  that 
he  is  unable  to  recover  the  strength  to  resume  work  because  of  his 
advanced  age,  compensation  should  be  paid  only  for  the  period  for 
which  he  was  disabled  by  the  fractures  and  bruises.  The  industry 
is  not  responsible  for  the  breakdown  of  his  physical  condition, 
caused  by  increasing  age,  though  such  disability  is  brought  on  at 
this  time  by  the  accident,  instead  of  later.®^  The  question  of  in- 
capacity "^  and  duration  thereof  are  questions  of  fact  to  be  deter- 
so  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  11,  p.  40;  McNally  v.  Fur- 
ness,  Withy  &  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  664,  C.  A. 

An  employ^  who  received  a  serious  injury  to  his  foot  was  afterward  sent  to 
the  State  Farm  because  of  intoxication.  The  evidence  showing  that  he  was 
totally  incapacitated  by  reason  of  the  injury  during  the  time  of  his  sentence  at 
the  State  Farm,  he  was  allowed  compensation.  Hanlon  v.  Employers'  Liab. 
Assur.  Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  716  (decision  of  Com.  of  Arb.). 

81  Duprey  v.  Maryland  Casualty  Co.,  219  Mass.  1S9,  106  N.  E.  686;  Lee  v. 
William  Baird  &  Co.,  Ltd.,  1  B.  W.  C.  C.  34. 

82  Udell  V.  Wagner,  Peterson  &  Wilson,  2  Cal.  I.  A.  C.  Dec.  113. 

83  Where  a  workman  suffered  the  loss  of  an  eye,  and  received  compensation 
for  some  time  from  his  employers,  and  then,  believing  that  he  could  do  cer- 
tain work  they  offered,  accepted  a  nominal  award,  and  on  finding  that  he 
could  not  do  the  work  was  restored  by  a  finding  of  the  county  court  judge 
to  full  compensation,  the  question  of  incapacity  was  one  of  fact  for  the  judge 
to  decide.  Thayne  v.  Gray  &  Co.,  Ltd.  (1915)  8  B.  W.  C.  C.  17,  C.  A.  Where 
a  workman  who  had  lost  the  top  joint  of  his  thumb  worked  at  light  work  for 
six  months,  and  on  being  asked  to  resume  his  old  job  refused,  on  the  ground 
that  he  was  unable  to  grip  ropes  such  as  would  be  necessary,  and  was  award- 


609  COMPENSATION  §   155 

mined  as  are  other  questions  of  fact.^*  Compensation  will  seldom 
be  awarded  on  the  unsupported  testimony  of  the  workman  as  to 
the  time  when  the  disability  terminates.  The  duration  of  the  dis- 
ability will  instead  be  determined  in  California  by  reference  to  the 
testimony  of  the  applicant,  the  information  given  by  the  attending 
physician  as  to  the  probable  course  of  the  injury  after  the  injured 
man  left  his  care,  and  by  the  advice  of  the  medical  director  of  the 
Industrial  Accident  Commission. °^  Where  it  appears  that  the  dis- 
ability is  proximately  caused  by  accident,  that  it  exists  at  the  time 
of  the  hearing,  and  that  the  only  issue  is  as  to  the  cause  of  the  con- 
tinued disability,  conflicting  or  undecisive  medical  evidence  will  be 
resolved  in  favor  of  the  injured  employe.^® 

The  Washington  Commission  has  held  that,  where  a  claimant  is 
unable  to  furnish  proof  of  the  magnitude  of  the  injury  sustained 
by  the  detailed  report  of  a  competent  attending  ph3^sican,  who 
made  examination  of  the  resulting  physical  condition  within  a  rea- 
sonable time  after  the  accident,  it  will  not  open  the  door  to  fraud 
by  making  an  award,  unless  the  injury  is  of  such  continuing  and 
serious  character  that  a  state  surgical  examiner  has  been  able  to 
make  a  full  and  satisfactory  special  report  thereon,^''  and  that  the 
duration  of  disability,  if  temporary,  or  the  character,  if  permanent, 
except  in  rare  cases,  must  be  proven  by  report  of  a  licensed  physi- 
cian or  surgeon.®®     To  establish  a  valid  claim  under  the  Washing- 

ed  compensation  for  partial  incapacity  by  the  county  court  judge,  the  question 
of  incapacity  was  one  of  fact  for  him  to  decide.  Curry  v.  Dosford  &  Sons, 
Ltd.  (1915)  8  B.  W.  C.  C.  19,  C.  A.  Where,  on  an  application  for  review  by 
the  employers,  the  judge  said  he  could  not  decide  the  question  of  incapacity 
because  the  medical  evidence  was  conflicting,  the  case  was  returned  with 
instructions  that  he  must  decide.  Cowan  v.  Simpson  (1910)  3  B.  W.  C.  C. 
4,  C.  A. 

9*  Gorrell  v.  Battelle,  93  Kan.  370,  144  Pac.  244. 

95  Gregory  v.  Merrill  Metallurgical  Co.,  1  Cal.  I.  A.  C.  Dec.  40S. 

96  Spencer  v.  Gibson,  1  Cal.  I.  A.  C.  Dec.  565. 

9  7  (Wk.  Comp.  Act  Wash.  §  12)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  21, 
98  Id.  p.  20. 

HoN.CoMP. — 39 


§  155  workmen's  compensation  610 

ton  Act,  the  injured  workman  need  not  be  so  helpless  as  to  re- 
quire the  assistance  of  a  nurse,  but  there  must  be  professional  cer- 
tification of  his  being  entirely  incapable  of  doing  any  gainful  work 
for  a  period  of  time  resulting  in  a  loss  of  not  less  than  5  per  cent, 
of  his  monthly  wage.^® 

The  existence  and  continuation  of  incapacity  on  the  one  hand, 
and  of  malingering  or  termination  of  incapacity  on  the  other,  are 
questions  of  fact  to  be  determined  from  the  evidence ;  compensa- 
tion being  awarded,  denied  or  limited  in  accordance  with  such  de- 
termination/    The  signing  of  a  final  release  while  evidence  of  the 

0  0  (Wk.  Comp.  Act  Wash.  §  5)  Id.  p.  16. 

1  In  Intorigne  v.  Smith  &  Cooley,  1  Conn.  Comp.  Dec.  228,  where  it  ap- 
peared that  the  disability  was  due  largely  to  imagination  and  slight  neurotic 
condition,  which  would  be  best  cured  by  the  claimant's  early  return  to  work, 
he  having  already  received  compensation  for  twenty-six  weeks,  an  award  of 
six  weeks  additional  was  made  to  allow  the  claimant  sufhcient  time  to  re- 
sume his  normal  mental  condition  and  end  the  disability.  In  Dominick  v. 
Brainerd,  Shaler  &  Hall  Quarry  Co.,  1  Conn.  Comp.  Dec.  655,  wherein  the 
evidence  tended  strongly  to  show  malingering,  the  commissioner,  in  consid- 
eration of  all  the  facts  shown,  awarded  compensation  of  ?5  a  week  for  four 
weeks,  and  incidental  expenses  of  $3,  "in  order  to  administer  a  soothing 
balm  to  the  injured's  mental  condition,  and  to  allow  a  sufficient  lapse  of 
time  to  effect  a  recovery  by  proper  muscular  activity  of  the  injured  arm." 
In  Hurlowski  v.  American  Brass  Co.,  1  Conn.  Comp.  Dec.  6,  where  the  claim- 
ant's vision  was  still  impaired  as  a  result  of  tlie  injury,  and  was  apt  to  be 
made  worse  by  fatigue,  and  he  also  suffered  headache  and  dizziness  when  he 
tried  to  work,  it  was  held  that  he  was  still  incapacitated.  In  Wallace  v. 
Tracy  Bros.  Co.,  1  Conn.  Comp.  Dec.  156,  where  a  workman  was  taken  back 
by  his  employers  and  given  light  work,  but  was  later  discharged  because 
they  had  no  more  of  that  kind  of  work,  while  another  man  was  kept  on  at 
his  old  work  and  he  was  given  no  chance  to  try  it,  and  was  unable  to  find 
other  work  that  he  could  do,  he  was  entitled  to  compensation  for  incapacity 
due  to  the  injury.  In  Giovanellie  v.  C.  W.  Blakeslee  &  Sons,  1  Conn.  Comp. 
Dec.  164,  where  it  appeared  that  the  claimant  had  been  discharged  from  the 
hospital  and  his  card  marked  "cured,"  and  was  seen  walking  a  half  mile  to 
the  doctor's  oflice  and  at  play  throwing  balls  weighing  about  two  pounds,  and 
had  ceased  to  receive  medical  attention,  while  the  evidence  he  produced  of 
incapacity  was  of  doubtful  character,  it  was  held  his  incapacity  had  ended. 
In  Fasulo  (alias  Fise)  v.  Andrew  B.  Hendryx  Co.,  1  Conn.  Comp.  Dec.  29 
(affirmed  by  superior  court),  where  it  was  shown  on  medical  examination 
that  the  claimant's  injured  finger  had  healed  sufficiently  to  enable  him  to 


611  COMPENSATION  §    156 

employe's  opinion  that  he  was  able  to  work  is  not  necessarily  con- 
clusive that  he  is  in  fact  able  to  do  so,  since  his  opinion  may  be 
erroneous.  Self-diagnosis  is  not  of  itself  evidence  of  ability  to 
work.^  That  a  workman  thought  his  disability  had  ceased  and  set 
out  on  his  vacation,  does  not  affect  compensation,  so  long  as  his 
disability  actually  continues.^ 

§  156,     Permanent  total  disability 

There  are  four  classes  of  disability:  Permanent  total,  temporary 
total,  permanent  partial,  and  temporary  partial.  Permanent  total 
disability  usually  entitles  the  employe  to  periodical  payments,  based 
upon  his  wages,  to  last  a  maximum  number  of  periods,  and  a  pen- 
sion after  that  for  the  rest  of  his  life.*  Whether  a  disability  con- 
stitutes a  permanent  total  disability  is  a  question  of  fact,  to  be  de- 
termined from  the  facts  of  each  particular  case,^  but  is  not  neces- 

work  without  harm  other  than  inconvenience,  it  was  held  that  incapacity 
had  ceased.  In  Killoy  v.  Evans,  1  Conn.  Comp.  Dec.  277,  where  it  appeared 
that,  though  plaintiff  slipped  and  fell  on  the  ice  while  discharging  her  duties 
and  sustained  an  abrasion  of  her  face  and  head,  she  was  at  no  time  incapaci- 
tated from  work  and  had  received  full  wages  dviring  the  entire  time  since 
the  accident,  her  claim  was  dismissed.  In  Puridzy  v.  Winchester  Repeating 
Arms  Co.,  1  Conn.  Comp.  Dec.  420,  where  ovving  to  the  fact  that  claimant's 
left  eye  was  never  as  good  as  his  right,  that  he  was  unused  to  using  it  sole- 
ly, and  to  a  slight  sympathetic  irritation,  due  to  the  injury  to  the  right  eye, 
causing  total  loss  of  sight,  he  suffered  considerable  in  his  left  eye,  but  there 
was  no  injury  to  the  left  eye,  and  no  incapacity  in  that  eye  connected  with 
the  injury,  compensation  was  allowed  only  for  the  total  loss  of  sight  of  the 
right  eye. 

2  Naruk  v.  Main,  1  Conn.  Comp.  Dec.  48. 

3  Compensation  will  be  awarded  for  the  full  term  of  disability  caused  by 
a  compensable  injury,  although  during  such  period  of  disability  the  injured 
employ^,  mistakenly  deeming  his  wound  had  practically  healed,  left  on  his 
vacation  without  pay.  Bickelnitzky  v.  Acme  Brewing  Co.,  3  Cal.  I.  A.  C. 
Dec.  5. 

4  Wk.  Comp.  Act  Cal.  §  15  (2)  (5). 

5  state  ex  rel.  Casualty  Co.  of  America  v.  District  Court  (Minn.)  158  N.  W. 
700. 

Paralysis  of  the  body,  from  the  waist  down,  and  of  both  legs,  which  is  per- 
manent, constitutes  a  total  disability  of  100  per  cent.     Phillips  v.  Chanslor- 


§  156  workmen's  compensation  612 

sarily  a  jury  question.®  The  loss  of  sight  of  both  eyes  constitutes 
permanent  total  disability.''     The  determination  of  the  extent  of 

Canfield  Midway  Oil  Co.,  1  Cal.  I.  A.  C.  Dec.  5S0.  Where  a  workman,  as  a 
result  of  coming  in  contact  with  a  high-power  electric  current,  sustained  a 
permanent  complete  disablement  of  the  right  arm,  shoulder,  and  hand,  spi- 
nal deformitj',  and  complete  loss  of  motion  of  spine,  shoulders,  and  neck,  lim- 
ited motion  of  the  right  leg,  and  distortion  and  lameness  in  both  feet,  ne 
has  suffered  a  300  per  cent,  permanent  disability,  which  entitles  him  to  an 
award  of  Go  per  cent,  of  his  average  earnings  for  240  weeks,  and  a  pen- 
sion of  40  per  cent,  of  his  average  earnings  thereafter  for  life.  Gibney  v. 
Caspar  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  825. 

In  Haughland  v.  Howe,  1  Conn.  Comp.  Dec.  401,  where  the  claimant, 
though  having  no  useful  vision,  as  far  as  ability  to  earn  was  concerned,  in 
the  injured  eye,  was  able  to  count  figures  at  a  distance  of  two  feet,  it  was 
held  he  could  not  recover  specific  indemnity  under  the  schedule  for  "com- 
plete and  permanent  loss  of  sight,"  though  he  was  awarded  for  partial  in- 
capacity, and  provision  made  for  reopening  the  finding  in  case  of  further 
diminution  of  sight. 

Where  the  weight  of  the  evidence,  medical  and  otherwise,  showed  that  the 
employ^  was  totally  incapacitated  for  work  by  the  results  of  the  injury,  due 
to  the  amputation  of  his  arm,  and  that  another  surgical  operation  was  need- 
ed to  relieve  a  condition  of  sensitiveness  following  the  operation,  it  was  held 
that  he  was  totally  incapacitated  for  work.  Clementi  v.  Travelers'  Insur. 
Co.,  2  Mass.  Wk.  Comp.  Cases,  330  (decision  of  Com.  of  Arb.). 

Where  claimant  lost  by  the  accident  the  entire  sight  of  his  right  eye  and 
95  per  cent,  of  his  left,  and  sustained  injuries  to  his  head  which  made  it  im- 
possible for  him  to  stoop  or  bend  over  without  pain,  and  there  was  testimony 
that  he  was  unable  to  engage  in  any  occupation,  the  evidence  of  injury  was 
sulhcient  to  support  a  finding  of  permanent  total  disability.  State  ex  rel. 
Casualty  Co.  of  America  v.  District  Court,  supra. 

Where  the  arm  of  a  domestic  servant  was  stiffened  by  the  injury,  so  that 
it  would  not  flex  more  than  20  per  cent.,  was  also  atrophied  and  stiffened 
at  the  shoulder  so  that  she  could  not  raise  her  arm  above  her  head,  and  the 
nerves  to  the  extensor  muscles  of  her  wrist  were  severed,  so  that  though 
able  to  do  some  work  as  a  domestic,  she  required  assistance  in  nearly  every 
line  of  the  work,  and  could  not  have  secured  employment  as  a  regular  do- 
mestic because  of  her  condition,  she  was  totally  incapacitated.  McGill  v. 
Dunn  County,  Bui.  Wis.  Indus.  Com.,  1912-13,  p.  33. 

6  Sinnes  v.  Daggett,  80  Wash.  673,  142  Pac.  5. 

7  Kraljlvich  v.  Yellow  Aster  Mining  &  Milling  Co.,  1  Cal.  I.  A.  C.  Dec.  554. 
The  employe  having  suffered  loss  of  both  eyes,  a  permanent  total  disabil- 
ity is  conclusively  presumed,  and  he  is  entitled  to  a  100  per  cent,  rating,  or 


613  COMPENSATION  §    157 

the  compensable  disability  in  case  of  a  previously  impaired  physical 
condition  is  reserved  for  consideration  in  another  section. * 

§  157.     Permanent  partial  disability 

A  workman  is  partially  disabled  where  he  is  rendered  less  able 
to  perform  work.^  The  per  cent,  of  total  disability  that  the  injury 
in  each  case  constitutes  depends  on  the  particular  facts. ^°  The 
combined  result  of  two  accidents  in  the  same  employment  may  en- 
title the  workman  to  compensation  for  a  permanent  partial  disabil- 
ity, though,  if  each  accident  were  considered  separately,  such  com- 
pensation would  not  be  due.^^  Whether  there  is  a  permanent  par- 
indemnity  of  65  per  cent,  of  his  average  weekly  earnings  for  240  weeks,  and 
thereafter  40  per  cent,  thereof  for  the  remainder  of  life.  Sampo  v.  Yellow 
Aster  Mining  &  Milling  Co.,  2  Cal.  I.  A.  C.  Dec.  539;  Galante  v.  Mammoth 
Copper  Mining  Co.  of  Maine,  2  Cal.  I.  A.  C.  Dec.  732. 

8  See  §  160,  post. 

9  Where  an  employe,  in  consequence  of  an  injury  to  his  fingers,  could  not 
tightly  close  them  in  his  hand,  and  was  thereby  rendered  less  able  to  perform 
his  work,  he  was  partially  incapacitated  from  performing  labor.  Galley  v. 
Peet  Bros.  Mfg.  Co.,  9S  Kan.  53,  157  Pac.  431. 

10  Sinnes  v.  Daggett,  80  Wash.  673,  142  Pac.  5. 

Where  an  electric  power  station  operator,  by  accidental  contact  with  two 
blades  of  a  switch  he  was  polishing,  had  his  arm  burned  off  four  inches 
below  the  elbow,  and  his  right  hand  so  badly  burned  that  it  was  impossible 
for  him  to  pick  up  articles,  and  his  mouth  and  jaw  so  burned  as  to  prevent 
distinct  speech,  the  Commission  found  his  disability  sufficient  to  entitle  him 
to  an  award  of  a  life  pension  of  34%  per  cent,  of  his  average  weekly  earn- 
ings, following  the  usual  indemnity  of  65  per  cent,  of  his  weekly  wages  for 
240  weeks.  Brooks  v.  Central  California  Traction  Co.,  2  Cal.  I.  A.  C  Dec 
420. 

That  an  injury  causing  the  amputation  of  the  index  finger  of  a  carpenter 
and  cabinet  maker  between  the  knuckle  and  proximal  joint  occasioned  a  per- 
manent partial  disability  of  20^4  per  cent.,  although  he  was  able  to  do  the 
same  work  as  before  the  injury,  was  a  finding  of  fact  supported  by  the  evi- 
dence.    Frankfort  General  Ins.  Co.  v.  Pillsbury  (Cal.)  159  Pac.  150. 

11  Where  an  employe  lost  the  first  joint  of  one  finger  of  his  left  hand  by 
accident,  and  two  months  later  lost  the  joint  of  another  finger  of  the  same 
hand  by  another  accident  in  the  same  employment,  and  no  permanent  par- 


§  157  workmen's  compensation  614 

tial  disability,  where  the  disability  would  ordinarily  be  only  par- 
tial, but  is  made  total  by  a  previously  existing  impairment,  is  con- 
sidered in  another  section. ^^ 

Permanent  disability  ratings  are  made  under  the  California  Act 
with  reference  to  the  nature  and  extent  of  the  injury,  the  age  of 
the  injured  person,  and  his  occupation.  Thus  the  fact  that  the  loss 
of  a  part  of  a  finger  on  the  left  hand  is  more  disabling  to  a  car- 
penter than  to  a  common  laborer  will  be  considered. ^^  After  a  per- 
manent disability  rating  has  been  properly  arrived  at,  it  is  not  a 
defense  that  the  employe  returned  to  work  before  the  termination 
of  the  period  covered  by  the  payments,  or  that  the  disability  did 
not  disqualify  him  for  the  kind  of  work  which  he  was  doing  at  the 
time  of  his  injury.^*     Inability  of  an  injured  employe,  who  is  only 

tial  disability  compensation  would  be  due  if  each  accident  were  treated  sep- 
arately, but  the  combined  result  of  the  two  accidents  entitled  the  applicant 
to  permanent  partial  disability  indemnity  of  5^4  per  cent.,  it  was  awarded. 
Where  both  accidents  occur  in  the  same  employment  within  a  short  space 
of  time,  and  no  compensation  has  been  paid  for  the  first,  the  percentage  of 
permanent  disability  should  be  based  upon  the  combined  results  of  the  two, 
as  accords  nearest  to  the  actual  injury  or  deprivation  of  earning  power  sus- 
tained.    Berry  v.  Pacific  Coast  Steel  Co.,  2  Cal.  I.  A.  C.  Dec.  178. 

12  See  §  IGO,  post. 

13  Johnson  v.  Hammond  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  574.  The  rating 
schedule  for  permanent  partial  disability  is  made,  not  solely  with  regard  to 
the  direct  loss  of  earning  power  by  reason  of  the  injury,  but  with  regard  al- 
so to  the  impairment  of  physical  efficiency  for  the  remainder  of  the  life  of 
the  injured  employe.  Immel  v.  American  Beet  Sugar  Co.,  2  Cal,  I.  A.  C. 
Dec.  385. 

But  where  the  circumstances  of  a  special  case  indicate  that  the  rating  ap- 
pearing in  the  schedule  published  by  the  Commission,  as  to  a  certain  kind 
of  permanent  disability,  is  too  low,  or  where  the  testimony  shows  that  the 
framers  of  such  schedule  made  an  underestimate  as  regards  a  certain  class 
of  permanent  disability,  the  Commission  will  not  be  bound  by  the  schedule, 
but  will  rate  such  disability  upon  the  basis  indicated  by  the  evidence  to  be 
proper.     Lee  v.  Pacific  Coast  Steel  Co.,  3  Cal.  I.  A.  O.  Dec.  28. 

14  Gabriel  v.  Northwestern  Pacific  R.  R.  Co.,  2  Cal.  I.  A.  C.  Dee.  129. 
Where  a  carpenter  accidentally  has  the  index  finger  of  his  left  hand  severed, 
but  within  twenty  days  returns  to  his  work  at  the  same  wage,  and  the  par- 


615  COMPENSATION  §   157 

partially  disabled,  to  find  employment  by  reason  of  hard  times  or 
of  the  scarcity  of  employment,  cannot  be  taken  into  consideration 
in  determining  the  extent  of  a  disability  indemnity  to  be  awarded 
him.  The  California  Commission  is  authorized  to  take  into  con- 
sideration, in  determining  the  extent  of  temporary  partial  disabil- 
ity only:  (1)  The  work  which  such  employe  with  reasonable  dili- 
gence is  capable  of  doing  in  view  of  the  nature  of  his  physical  in- 
juries; and  (2)  the  handicap  of  an  injured  or  sick  employe  over 
able-bodied  persons  seeking  employment. ^^  This  Commission  has 
power  to  award  compensation  for  a  permanent  partial  disability 
amounting  to  less  than  10  per  cent,  of  total  disability.^®  No  per- 
manent partial  disability  award  is  given  for  an  injury  resulting  in 
the  loss  of  the  little  finger  at  the  distal  joint  and  the  tip  of  the  third 
finger  between  the  end  and  the  distal  joint,  both  on  the  right  hand, 
for  the  reason  that  the  disability  caused  thereby  is  of  too  slight  a 
nature  to  be  compensated  in  this  manner.  Full  temporary  total 
and  partial  disability  award  will  be  made  for  such  injury,  however.^'' 
Where  an  applicant  sustains  a  fractured  leg,  thereby  entitling  him 
fo  a  temporary  total  disability  until  his  recovery,  and  also  sustains 
a  permanent  disability  to  his  toes,  but  the  amount  to  which  he  is 
entitled  because  of  his  permanent  disability  is  less  than  the  amount 
paid  him  as  a  temporary  disability  indemnity,  he  is  not  entitled  to 
any  compensation  for  his  permanent  injury.^^ 

ties  stipulate  that  lie  is  able  to  do  as  good  worli  and  as  much  of  it  as  he  had 
done  previously,  his  permanent  disability  will  nevertheless  be  rated  with 
reference  to  the  nature  of  his  physical  injury  or  disfigurement,  the  occupa- 
tion of  the  injured  employ^,  and  his  age,  especially  where  the  stipulation  is 
shown  to  have  been  entered  into  by  inadvertence  and  to  be  untrue  in  fact. 
Tmmel  v.  American  Beet  Sugar  Co.,  2  Cal.  I.  A.  C.  Dec.  385. 

15  Johnson  v.  Cluett  Peabody  Co.,  2  Cal.  I.  A.  C.  Dec.  7. 

18  Solloway  v.  Kopperud,  2  Cal.  I.  A.  C.  Dec.  187.  The  Commission  has 
power  to  award  compensation  for  a  less  per  cent,  of  total  disability  than  10 
per  cent.,  here  2%.  Mass.  Bonding  &  Ins.  Co,  v.  Pillsbury,  2  Cal,  I.  A,  C. 
Dec,  480,  170  Cal.  767,  151  Pac,  419. 

17  Shushke  v.  Vail  &  Vickers,  2  Cal.  I,  A,  C.  Dec.  182. 

18  Mason  v.  Knight,  1  Cal.  I.  A,  C.  Dec,  493. 


§  157  workmen's  compensation  616 

The  provision  of  the  New  York  Act  that,  in  case  of  partial  dis- 
ability not  otherwise  specifically  provided  for  in  section  15,  the 
compensation  shall  be  66%  per  cent,  of  the  difference  between  the 
average  weekly  wages  of  the  injured  employe  and  his  wage-earn- 
ing capacity  after  the  accident,  this  compensation  to  continue  dur- 
ing the  disability,  subject  to  certain  conditions  and  limitations,  ap- 
plies to  a  case  of  the  loss  of  the  tip  of  the  first  phalange  of  a  finger, 
where  the  wages  received  after  the  accident  are  less  than  those  re- 
ceived prior  thereto.^^  The  amount  to  be  awarded  for  permanent 
partial  disabiHty  under  the  Washington  rvct  is  in  the  discretion  of 
the  Industrial  Insurance  Department.-" 

§  158.     Temporary  total  disability 

The  facts  of  each  case  of  temporary  disability  must  determine 
whether  or  not  it  is  total. -^     Total  temporary  disability  no  longer 

19  (Wk.  Comp.  Act,  §  15,  subds.  3,  4)  Mockler  v.  Hawkes  (Sup.)  15S  N.  Y. 
Supp.  759. 

20  Sinnes  v.  Daggett,  80  Wash.  673,  142  Pac.  5. 

21  As  to  relation  betweeu  total  disability  and  inability,  because  of  the  in- 
jury, to  obtain  work,  see  §  155,  ante. 

Where  the  evidence  shows  that  an  injured  employe  is  able  to  work  a  few 
days  at  a  tiiue,  but  that  whenever  he  does  attempt  to  work  a  relapse  is  inev- 
itable after  a  few  days,  such  employ^  is  still  under  a  total  temporary  dis- 
ability.   Colot  V.  Union  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  512. 

In  Verderame  v.  Blenuer,  1  Conn.  Comp.  Dec.  325,  where  claimant  sustained 
an  injury  consisting  of  the  severance  of  the  artery,  nerves,  and  tendons  up- 
on the  anterior  surface  of  her  left  wrist,  she  was  awarded  compensation  for 
total  temporary  incapacity.  Where  on  supplemental  hearing  it  was  shown 
that  she  had  little  use  of  her  left  hand,  the  fingers  contracting  upon  the 
palm,  and  she  being  unable  to  dress  herself  or  do  any  amount  of  woi-k,  it 
was  held  there  was  still  total  incapacity  resulting  from  the  injury. 

The  employe  was  totally  incapacitated  for  work  where  a  girl,  15  years  of 
age,  suffered  an  injury  as  a  result  of  which  the  ring  finger  was  wholly  am- 
putated and  the  index  fingers  were  rendered  permanently  incapable  of  use 
below  the  middle  joint,  and  the  little  finger  also  injured  (Cunka  v.  American 
Mut.  Liab.  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  491  [decision  of  Com.  of 
Arb.]) ;  where  an  employe  received  a  blow  in  the  right  eye  from  a  belt  which 
carried  power  to  a  boring  machine  on  which  he  was  employed,  and  a  trau- 


617  COMPENSATION  §   158 

exists  when  by  reasonable  diligence  an  employe  can  earn.  When 
this  ability  has  returned  to  him  to  a  definite  extent,  he  is  then  only 
entitled  to  compensation  for  temporary  partial  disability. ^^  Evi- 
dence that  the  injured  employe  was  employed  by  his  former  em- 

/ 
matic  cataract  developed,  which  sympathetically  affected  the  left  eye  and 
caused  incapacity  for  work  (Stachuse  v.  Fidelity  &  Casualty  Co.  of  N.  Y., 
2  Mass.  Wk.  Comp.  Cases,  324  [decision  of  Indus.  Ace.  Bd.]) ;  where  a  car- 
penter, blind  in  one  eye  and  partially  deaf  at  the  time  of  the  injury,  was  in- 
capacitated for  work  except  "bench  work,"  though  he  claimed  later  to  be 
totally  incapacitated  from  performing  any  work,  and  was  shown  upon  ex- 
amination by  an  impartial  examiner  to  be  unable  to  perform  any  work  ex- 
cept that  which  could  be  done  while  seated  (Duprey  v.  Md.  Casualty  Co.,  2 
Mass.  Wk.  Comp.  Cases,  132  [affirmed  by  Sup.  Jud.  Ct.,  219  Mass.  189,  106 
N.  E.  686]);  where  the  employe  suffered  a  fracture  of  the  bones  in  his  left 
hand  and  of  his  right  arm,  above  the  elbow,  the  latter  so  serious  that  the 
broken  bone  never  united,  leaving  the  left  hand  considerably  stiff  and  cramp- 
ed, and  the  right  arm  incapable  of  use,  and  endeavored  to  obtain  work  at 
various  places  of  employment  without  success,  being  in  fact  unable  to  earn 
any  wages  (Jamieson  v.  Fidelity  &  Deposit  Co.  of  Md.,  2  Mass.  Wk.  Comp. 
Cases,  772  [decision  of  Com.  of  Arb.]) ;  where  an  impartial  physician  reported 
that  the  employ^  was  still  unable  to  do  the  work  of  a  grocery  clerk,  his  reg- 
ular occupation,  and  recommended  that  the  treatment  suggested  by  the  em- 
ploye's physician  be  afforded  him  (Portnoy  v.  Fidelity  &  Casualty  Co.  of 
N.  T.,  2  Mass.  Wk.  Comp.  Cases,  823  [decision  of  Indus.  Ace.  Bd.]) ;  and  where 
a  carpenter  had  the  tip  of  the  thumb  of  his  right  hand  taken  off  by  a  planer 
knife,  and  later  obtained  employment  wheeling  coal,  but,  finding  he  was  un- 
able to  continue  at  this  work  because  of  further  trouble  with  the  injured 
thumb,  asked  for  lighter  work,  was  discharged,  and  was  unable  to  obtain  oth- 
er work  (Noval  v.  American  Mut.  Liab.  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases, 
586  [decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.]).  Where  the 
evidence  shov/ed  that  the  employe  received  a  peculiar  and  serious  injury, 
which  in  fact  incapacitated  him  wholly  for  work,  and  there  was  need  of  fur- 
ther expert  medical  treatment  in  order  to  more  promptly  restore  the  employe 
to  normal  working  efficiency,  the  employe  was  totally  incapacitated  for  work. 
Dibilio  V.  American  Mut.  Liab.  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  4S5  (de- 
cision of  Com.  of  Arb.). 

22  Larnhart  v.  Pdce-Landswick  Co.,  1  Cal.  I.  A.  C.  Dec.  557. 

Where  a  concrete  worker,  who  sustained  an  injury  while  working  for  the 
same  employer  as  a  common  laborer  digging  trenches,  recovered  sufficiently 
to  assume  the  duties  of  a  common  laborer,  but  was  not  strong  enough  to  per- 
form the  more  arduous  duties  of  a  concrete  worker,  the  compensable  tempo- 
rary disability  had  terminated.    Utieres  v.  Otto,  2  Cal.  I.  A.  C.  Dec.  652. 


I 


§  158  workmen's  compensation  618 

ployer  and  paid  wages,  after  the  accident,  though  some  evidence 
that  he  was  not  wholly  incapacitated,  is  not  conclusive.^^ 

Under  the  California  Act,  where  the  permanent  disability  rating 
was  for  a  period  of  sixteen  weeks  for  the  crippling  of  the  em- 
ploye's left  hand,  but  the  actual  total  incapacity  resulting  from  the 
injury  lasted  for  five  months  longer,  compensation  is  payable  for 
the  actual  total  disability;  the  permanent  partial  rating  being  in- 
cluded therein.^*  Where  the  employer  paid  full  wages  during  the 
disability,  and  there  is  no  evidence  showing  an  agreement  of  the 
parties  as  to  what  portions  were  respectively  for  services  and  com- 
pensation, it  will  be  conclusively  presumed  that  the  disability  was 
total." 

§  159.     Temporary  partial  disability 

Like  other  phases  of  disability,  the  existence  of  temporary  par- 
tial disability  is  to  be  determined  from  the  facts  of  each  particular 
case.^°     Under  the  Massachusetts  Act,  an  award  of  compensation 

23  In  re  Septiino,  219  Mass.  430,  107  N.  E.  63. 

24  Maher  v.  Sunset  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  602. 
2  5  Turner  v.  City  of  Santa  Cruz,  2  Cal.  I.  A.  C.  Dec.  991. 

2  6  Where  a  carpenter's  foreman  is  still  able  to  supervise  the  work  he  is 
employed  upon,  but  is  unable  as  the  result  of  the  accident  to  use  tools  and 
work  with  those  under  him,  he  is  under  a  partial  disability.  It  is  not  gener- 
ally or  customarily  true  that  a  carpenter's  foreman  is  not  expected  to  use 
tools  and  only  to  superintend  the  work  of  carpenters  under  him.  While  this 
would  be  true  of  a  superintendent  of  construction  on  a  large  building,  it  is 
not  generally  true  of  the  foreman  of  a  gang  of  carpenters.  Gordon  v.  Evans, 
1  Cal.  I.  A.  C.  Dec.  94.  A  fracture  of  the  main  bone  of  the  forearm,  be- 
cause of  the  pain,  if  for  no  other  reason,  constitutes  disability  for  a  reasonable 
period,  whatever  the  occupation  of  the  injured  person,  and  therefore  entitles 
him  to  disability  compensation.  Shouler  v.  Greenberg,  1  Cal.  I.  A.  C.  Dec. 
146.  The  statement  of  the  doctor  that  applicant  cannot  do  ordinary  labor, 
together  Mith  his  own  testimony  to  the  same  effect,  practically  uncontrovert- 
ed,  is  sufficient  to  warrant  a  conclusion  that  the  applicant  was  at  least  par- 
tially incapacitated  from  earning  a  living.  Acrey  v.  City  of  Holtville,  2  Cal. 
I.  A.  C.  Dec.  587. 

In  Peters  v.  Indianapolis  Abattoir  Co.,  1  Conn.  Corap.  Dec.  263,  where  the 


619  COMPENSATION  §    ICO 

for  total  disability  to  terminate  at  a  certain  date  did  not  preclude 
the  employe  from  securing  payment  for  partial  disability,  where  it 
appeared  that  it  was  intended  that  the  question  of  payment  for  par- 
tial disability  should  be  left  open  for  future  determination." 

§  160.     Computation  in  case  of  previously  impaired  physical  con- 
dition 

In  some  states,  where  an  injury  to  an  employe  results  in  total 
disability  because  his  physical  condition  was  previously  impaired, 

claimant  had  recovered  from  his  injuries,  all  but  a  tenderness  on  the  left  side 
and  atrophy  of  the  muscles,  but  suffered  from  backache  resulting  from  over- 
use and  strain  upon  the  muscles  of  the  back,  consequent  upon  his  injury,  he 
was  awarded  compensation  for  partial  incapacity.  In  Jacobs  v.  American 
Steel  &  Wire  Co.,  1  Conn.  Comp.  Dec.  100,  where  the  claimant,  after  several 
weeks  of  total  incapacity  from  being  struck  in  the  eye  with  a  wire,  returned 
to  work,  but  was  unable  to  work  full  time  because  he  was  still  undergoing 
medical  treatment,  which  caused  continual  pain  and  annoyance,  he  was 
awarded  one-half  the  difference  between  his  wages  before  and  after  the  in- 
jury, on  the  basis  of  partial  Incapacity.  In  Cottun  v.  I.  Newman  &  Sons,  1 
Conn.  Comp.  Dec.  289,  the  commissioner  found,  on  medical  evidence  conflict- 
ing as  to  whether  there  was  mere  flabbiness  of  the  injured  muscle  at  the  time 
of  hearing,  or  an  injury  to  the  structure,  that  there  was  partial  disability,  but 
refused  to  find  that  condition  permanent,  and  recommended  that  the  employer 
offer  work  under  favorable  conditions,  so  as  to  ascertain  definitely  the  ex- 
tent and  probable  duration  of  such  incapacity,  the  award  for  five  weeks  ad- 
ditional to  be  modified  if  it  later  appeared  necessary. 

The  employg,  who  had  previously  been  awarded  indemnity  for  total  inca- 
pacity, had  obtained  a  position  at  which  he  was  able  to  earn  an  average  week- 
ly wage  of  $1.50.  He  had  made  several  efforts  to  obtain  other  employment, 
but  without  success.  The  medical  testimony  showed  that  his  partial  inca- 
pacity for  work  was  due  to  a  condition  of  hysterical  blindness  and  neurosis, 
having  a  casual  relation  with  the  personal  injury  received.  His  average 
weekly  wages  at  the  time  of  the  injury  were  $30.  It  was  held  that  the  em- 
ployg  is  entitled  to  compensation  on  account  of  partial  incapacity.  Hunne- 
well  V.  Casualty  Co.  of  America,  2  Mass.  Wk.  Comp.  Cases,  827  (decision  of 
Indus.  Ace.  Bd.,  affirmed  by  Sup.  Jud.  Ct.,  220  Mass.  351,  107  N.  E.  934). 

It  was  error  to  classify  the  "consolidation"  of  two  inches  of  the  workman's 
lung  as  temporary,  after  it  had  healed  as  much  as  it  would  ever  heal,  and 
thereby  extend  the  allowance  for  temporary  disability.     (P.  L.  1913,  p.  302, 

2  7  In  re  Hunnewell,  220  Mass.  351,  107  N.  B.  934. 


I 


§  160  workmen's  compensation  620 

as  where  a  one-eyed  man  is  made  totally  blind  by  the  loss  of  the 
other  eye,  or  a  man  having  only  one  hand  loses  it,  the  award  is 
made  for  total  disability.^^  In  other  states,  a  different  rule  pre- 
vails,^'' and,  in  case  of  loss  of  sight,  compensation  is  allowed  only 

amending  Wk.  Comp.  Act  of  1911)  Birmingham  v.  Lehigti  &  Wilkesbarre  Coal 
Co.  (N.  J.  Sup.)  95  Atl.  242,  distinguishing  Nitram  Co.  v.  Creagh,  84  N.  J. 
Law,  243,  86  Atl.  435,  in  which  the  temporary  award  ran  while  the  hand  was 
in  process  of  healing. 

28  "The  employe,  when  he  entered  the  service  of  the  subscriber,  had  that 
degree  of  capacity  which  enabled  him  to  do  the  work  for  which  he  was  hired. 
That  was  his  capacity.  It  was  an  impaired  capacity  as  compared  with  the 
normal  capacity  of  a  healthy  man  in  the  possession  of  all  his  faculties.  But 
nevertheless  it  was  the  employe's  capacity.  It  enabled  him  to  earn  the  wages 
which  he  received.  He  became  an  'employe'  under  the  Act,  and  thereby  en- 
titled to  all  the  benefits  conferred  upon  those  coming  within  that  description. 
The  Act  afCords  a  fixed  compensation  for  a  limited  time  while  the  incapacity 
for  work  resulting  from  the  injury  is  total.  It  establishes  no  other  standard. 
It  fixes  no  method  for  dividing  the  effect  of  the  injury,  and  attributing  a  part 
of  it  to  the  employment  and  another  part  to  some  pre-existing  condition,  and 
it  gives  no  indication  that  the  Legislature  intended  any  such  division.  The 
total  capacity  of  this  employe  was  not  so  great  as  it  M'ould  have  been  if  he 
had  had  two  sound  eyes.  His  total  capacity  was  thus  only  a  part  of  that 
of  a  normal  man.  But  that  capacity,  which  was  all  he  had,  has  been  trans- 
formed into  a  total  incapacity  by  reason  of  the  injury.  That  result  has 
come  to  him  entirely  through  the  injury."  In  re  Branconnier,  In  re  Trav- 
elers' Insur.  Co.,  223  Mass.  273,  111  N.  E.  792. 

Where  a  workman,  having  only  one  hand,  lost  it  as  the  result  of  an  acci- 
dent in  bis  employment,  he  was  entitled  to  compensation  for  total  disal)ility. 
(Wk.  Comn.  Law,  §  15,  subd.  1)  Schwab  v.  Emporium  Forestry  Co.,  1G7  App. 
Div.  614,  153  N.  Y.  Supp.  234. 

A  pile  driver  lost  the  vision  of  his  left  eye  by  accident.  The  vision  in  the 
right  eye  had  been  destroyed  previously  by  a  cataract,  and  he  was  totally 
incapacitated  for  work  because  of  the  injury.  The  Committee  of  Arbitra- 
tion awarded  compensation  on  account  of  total  disability.  Morrison  v.  Fidel- 
ity &  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  594  (decision  of  Com.  of  Arb., 
affirmed  by  Indus.  Ace.  Bd.). 

2  9  The  liability  of  the  employer  is  ordinarily  limited  to  compensation  com- 
mensurate with  the  injury  suffered  by  the  employg  while  in  his  service,  and 
he  is  relieved  from  the  consequences  of  an  injury  previously  sustained,  even 
though  both  resulted  in  permanent  total  disability.  The  employer  accepts  in 
his  service  a  disabled  employe,  knowing  of  the  disability  and  with  knowledge 


621  COMPENSATION  §   160 

for  the  loss  or  disability  which  resulted  from  the  injury  suffered 
in  the  employment.^" 

that  under  the  Compensation  Act  he  is  liable  for  accidental  injuries  to  such 
employe  while  engaged  in  his  service ;  but  to  couple  the  prior  disability  with 
one  suffered  while  in  his  service,  and  make  the  employer  liable  for  both, 
would  seem  a  hardship  the  Legislature  intended  to  avoid.  State  ex  rel. 
Garwin  v.  District  Court,  129  Minn.  156,  151  N.  W.  910. 

3  0  Where  a  workman,  who  had  previously  lost  one  eye,  lost  the  other  in 
an  accident  arising  out  of  and  in  the  course  of  his  employment,  the  injury 
could  not  be  considered  a  total  disability.  Weaver  v.  Maxwell  Motor  Co.,  186 
Mich.  588,  152  N.  W.  993,  L.  R.  A.  1916B,  1276. 

Prior  to  the  time  relator  entered  respondent's  service  he  had  lost  the  sight 
of  one  eye  by  accidental  means.  After  entering  respondent's  service  he  lost, 
by  accident  happening  during  the  course  of  his  employment,  the  sight  of  his 
other  eye,  thus  rendering  him  totally  blind.  It  was  held,  under  section  15 
of  the  Compensation  Act,  that  the  last  employer  was  liable  for  a  permanent 
partial  disability  only,  for  that  was  the  extent  of  the  injury  which  the  em- 
ploye suffered  while  in  his  service.  State  v.  District  Court,  supra.  Section 
15,  Wk.  Comp.  Act,  limits  the  liability  of  an  employer  for  accidental  injury 
to  an  employe,  where  such  employe  had  before  entering  the  service  suffered 
an  injury  which  resulted  in  permanent  partial  disability,  to  the  compensation 
provided  for  by  section  13  for  a  permanent  partial  disability,  though  both  in- 
juries together  result  in  permanent  total  disability.  (Gen.  St.  1913,  c.  84a,  §§ 
8195-8230).     Id. 

Where  an  employe  sustained  a  serious  injury  to  one  eye  in  1911,  which 
would  eventually  result  in  total  blindness  of  that  eye,  and  in  1914  sustained 
the  immediate  destruction  of  the  sight  of  the  other  eye  by  accident  occurring 
in  the  course  of  his  employment  with  the  defendant,  the  percentage  of  perma- 
nent disability  for  which  the  employer  is  liable  in  compensation  is  to  be  de- 
termined solely  with  reference  to  the  physical  injuries  caused  by  the  sec- 
ond accident,  and  not  with  reference  to  the  condition  of  the  applicant  ensu- 
ing after  the  second .  accident,  as  influenced  by  the  first.  The  employer  is 
therefore  liable  to  pay  compensation  for  the  loss  of  one  eye,  and  not  for  to- 
tal blindness.  Rouner  v.  Columbia,  Steel  Co.,  2  Cal.  I.  A.  C.  Dec.  207. 
Where  disability  is  prolonged  by  reason  of  the  injured  workingman's 
having  suffered,  prior  to  the  happening  of  the  accident  in  question,  from 
varicose  ulcers,  so  as  to  have  practically  no  skin  left,  but  only  scar  tis- 
sue upon  the  exposed  parts,  and  this  feature  greatly  prolongs  disability 
from  a  new  ulcer  caused  by  an  accidental  bruise,  the  disability  payments  will 
be  limited  to  such  time  as,  in  the  judgment  of  the  competent  medical  advis- 
ers, the  disability  would  have  terminated  in  any  ordinary  case  of  varicose 
ulcer.    Fischer  v.  Union  Ice  Co.,  2  Cal.  I.  A.  O.  Dec.  72.    Where  the  applicant 


§  160  workmen's  compensation  622 

Under  the  Connecticut  Act,  where  one  eye  is  destroyed  and  the 
other  injured,  and  total  incapacity  for  work  results  from  the  in- 
jured eye  because  of  the  blindness  of  the  other,  though  it  would 
not  have  caused  incapacity  had  that  eye  been  normal,  compensa- 
tion is  payable  for  loss  of  the  eye  under  the  schedule,  and  for  total 
incapacity  during  its  existence.^^  Where  the  claimant  had  no  use- 
ful vision  in  her  eye  because  of  a  prior  injury,  though  she  was 
able  to  distinguish  light  from  dark,  she  could  not  recover  for  loss 
of  sight  on  account  of  an  accident  which  necessitated  the  removal 
of  the  eye;  but  where  the  removal  of  such  eye  was  made  desirable 
by  pain  and  soreness  consequent  upon  sticking  a  spindle  into  it 
while  stooping  to  pick  up  a  bobbin  which  had  fallen  on  the  floor, 
compensation  was  allowed  for  disability  due  to  its  removal.'^ 

§  161.     Hernia — California 

A  hernia,  though  usually  remediable  by  operation,  and  therefore 
a  temporary  disability,  constitutes  a  permanent  disability  where 
it  is  not  operated  upon  and  no  operation  is  tendered  by  the  em- 
ployer. An  employe  receiving  a  hernia  is  under  no  obligation  to 
sustain  an  operation  at  his  own  expense,  as  his  earnings  should  be 
devoted  primarily  to  the  support  of  his  family,  and  he  cannot  rea- 
sonably be  required  to  deprive  them  of  such  support  to  undergo 

was  injured  by  a  fall,  causing  a  severe  sprain  of  the  left  ankle,  and  recovery 
therefrom  was  prolonged  by  reason  of  a  condition  of  general  arterial  disease, 
and  at  the  date  of  the  hearing  the  applicant's  disability  was  about  equally 
divided  between  his  general  condition  and  the  result  of  the  accident,  he  was 
held  entitled  to  compensation  during  the  entire  continuance  of  disability  re- 
sulting from  the  accident.  Dabila  v.  Brandon  &  Lawson,  1  Cal.  I.  A.  C.  Dec. 
239.  But  where  an  employe  bruises  his  leg,  this  bruise  subsequently  breaking 
down  into  an  ulcer,  and  the  duration  of  this  ulcer  is  greatly  prolonged  by  a 
condition  of  varicose  veins,  but  it  is  shown  that  the  varicose  condition  did  not 
in  any  way  contribute  to  the  formation  of  the  ulcer,  compensation  will  be 
allowed  for  the  full  period  of  disability.  Hoffman  v.  Korn,  2  Cal,  I.  A.  C. 
Dec.  166. 

81  Swanson  v.  Sargent  &  Co.,  1  Conn.  Comp.  Dec.  433. 

32  In  Nichols  v.  Max  Pollock  Co.,  1  Conn.  Comp.  Dec.  74. 


G23  COMPENSATION  §    162 

an  operation. ^^  Unless  an  employer  has  knowledge  prior  to  the 
accident  of  a  hernia  then  existing,  disability  awards  for  hernia, 
claimed  to  result  from  the  accident,  will  be  made  only  when  the 
traumatic  origin  of  the  hernia  is  clearly  established,  and  any  award 
will  be  limited  to  cover  the  cost  of  operation  to  cure  the  hernia  and 
for  disability  consequent  upon  such  operation,  except  for  such  dis- 
ability as  may  have  existed  prior  to  the  offer  on  the  part  of  the 
employer  or  insurance  carrier  to  provide  for  such  operation.^* 
Where  an  employe  is  operated  upon  for  hernia,  and  within  a  few 
days  after  leaving  the  hospital  returns,  suffering  from  typhoid 
fever,  such  typhoid  fever  will  not  be  presumed  to  have  been  caused 
by  the  hernia  or  operation,  and  compensation  will  be  allowed  only 
for  the  normal  period  of  disability  which  would  result  from  the 
operation  if  no  disease  had  intervened. ^° 

§  162.     Scheduled  injuries 

Where  compensation  under  the  schedule  is  in  addition  to  other 
compensation,  it  is  often  called  "additional  compensation."  ^^     The 

33  Taylor  v.  Spreckels,  2  Cal.  I.  A.  C.  Dec.  62.  A  hernia  may  be  treated  as 
a  permanent  disability  unless  operated  upon,  and  compensation  may  be 
awarded  upon  the  basis  of  such  permanent  disability,  unless  an  operation  be 
tendered  for  its  cure  at  the  expense  of  the  employer,  even  though  90  days 
may  have  elapsed  from  the  date  of  the  accident.    Id. 

Hernia  cannot  usually  be  regarded  as  a  permanent  disability,  as  it  is  reme- 
diable by  operation.  Brandt  v.  Globe  Indemnity  Co.,  1  Cal.  I,  A.  C.  Dec.  309. 
Hernia  is  a  temporary  disability,  because  it  is  remediable,  and  the  risk  of 
the  operation  is  inconsiderable,  in  view  of  the  seriousness  of  the  injury  if 
not  remedied,  under  section  16,  subd.  (e),  of  the  California  Act.  An  em  ploy  6 
suffering  from  hernia  must  therefore  submit  to  an  operation,  if  offered,  or 
forfeit  part  or  all  of  the  compensation  due  him.  McNamara  v.  United  States 
Fidelity  &  Guaranty  Co.,  1  Cal.  I.  A.  C.  Dec.  138. 

34Mifsud  V.  Palace  Hotel  Co.,  1  Cal.  I.  A.  C.  Dec.  37. 

3  5  Viglione  v.  Montgomery  Garage  Co.,  2  Cal.  I.  A.  C.  Dec.  87. 

36  The  injured  employ^,  who  had  suffered  the  loss  of  any  member,  was  en- 
titled to  specific  award,  as  stated  in  section  25  of  the  Nevada  Industrial  In- 
surance Act,  and  in  addition  to  said  award  was  also  entitled  to  an  award 


§  162  workmen's  compensation  624 

particular  injuries  set  out  are  merely  examples  to  aid  in  administer- 
ing the  Act.  The  enumeration  does  not  profess  to  be  exclusive.*^ 
The  usual  theory  of  the  Compensation  Acts  is  to  make  provision  in 
the  schedule  for  certain  specific  injuries,  and  to  leave  all  other  inju- 
ries to  be  compensated  for  under  general  provisions. ^^  An  award 
within  the  statutory  limit  cannot  be  held  arbitrary.^''  Under  a  pro- 
vision that  the  schedule  shall  also  apply  "in  case  the  injury  is  such 
that"  the  member  "is  permanently  incapable  of  use,"  the  words  "in- 
capable of  use"  should  receive  a  construction  which,  while  fairly 
within  their  interpretation,  is  not  narrow  and  technical,  nor,  on  the 

of  50  per  cent,  of  the  average  monthly  wage  for  such  tune  as  he  was  totally 
disabled.    Rep.  Nev.  Indus.  Com.  1913-14,  p.  24. 

The  fact  that  a  workman,  after  suffering  the  loss  of  one  or  more  fingers, 
is  able  to  earn  the  same  wage  as  before,  does  not  affect  his  right  to  the 
specific  indemnity  provided  in  section  10,  part  II,  of  the  Law ;  such  indemnity 
being  given  because  the  workman  must  go  through  the  remainder  of  his  life 
without  the  use  of  the  members  so  lost.  Lardie  v.  Grand  Rapids  Showcase 
Co.,  Mich.  Wk.  Comp.  Cases  (1916)    17. 

3  7  Wagner  v.  American  Bridge  Co.  (Sup.)  158  N.  Y.  Supp.  1043. 

3  8  "The  whole  schedule  is  so  specific  that  it  is  diflBcult  to  see  how  the  Leg- 
islature could  have  intended  that  an  injury  to  an  arm  impairing  its  useful- 
ness 50  per  cent,  or  any  degree,  would  come  within  the  schedule.  It  seems 
from  the  whole  Act  that  the  purpose  of  the  Legislature  was  to  confine  the 
fixed  compensation  named  in  the  schedule  in  subdivision  5  to  the  specific 
injuries  named  therein."  Northwestern  Fuel  Co.  v.  Leipus,  161  Wis.  450,  152 
N.  W.  856. 

It  was  held  in  Wallace  v.  Tracy  Bros.  Co.,  1  Conn.  Comp.  Dec.  155,  that 
the  Connecticut  Act  provides  compensation  under  the  schedule  in  lieu  of  all 
other  compensation  for  the  injuries  included  therein,  and  that  compensation 
may  be  awarded  in  addition  to  compensation  under  the  schedule,  for  injuries 
to  other  fingers  which  do  not  come  under  the  schedule.  In  Batch  v.  Borough 
of  Groton,  1  Conn.  Comp.  Dec.  177,  where  claimant's  finger  was  crushed  in  a 
pump,  and  infection  set  in  and  spread,  causing  the  total  loss  of  the  use  of  the 
hand  and  septic  phlebitis  in  the  right  leg,  compensation  was  awarded  under 
the  schedule  for  loss  of  the  use  of  the  hand,  and  separate  disability  indemnity 
for  incapacity  due  to  the  condition  of  the  leg. 

3  9  An  award  of  $1,200  to  a  servant  for  loss  of  several  fingers  could  not  be 
set  aside  as  arbitrary,  where  this  was  less  than  the  maximum  amount  au- 
thorized by  statute.     Sinnes  v.  Daggett,  80  Wash.  673,  142  Pac.  5. 


625  COMPENSATION  §  162 

other  hand,  so  free  and  liberal  as  to  give  a  right  which  the  words 
themselves  do  not  fairly  import.*"  The  complete  loss  of  the  func- 
tions of  a  thumb,  finger,  toe,  hand,  arm,  foot,  leg,  or  eye  should  be 
considered  as  the  total  loss  of  such  member;  *^  but  the  loss  of  the 
merest  shaving  of  bone  from  the  tip  of  the  first  phalange  is  not 
equivalent  to  the  loss  of  the  phalange. ^^  When  the  accident  sets 
in  motion  agencies  which  ultimately  destroy  the  sight  of  the  eye, 
no  right  to  compensation  accrues,  and  no  compensable  injury  ex- 
ists, until  the  point  of  time  is  reached  where  the  eye  is  a  total  loss.*^ 
"All  other  cases  in  this  class,"  in  the  provision  of  the  Wisconsin 
Act  that  in  such  cases  "the  compensation  shall  bear  such  relation 
to  the  amount  stated  in  the  above  schedule  as  the  disabiHties  bear 
to  those  produced  by  the  injuries  named  in  the  schedule,"  obviously 
has  reference  to  the  injuries  mentioned  specifically  in  the  schedule, 
and  was  not  intended  to  include  impairment  occasioned  by  a  dif- 
ferent injury  than  that  named  in  the  schedule.^*  Where  the  injury 
consisted  of  a  fracture  of  the  skull,  paralysis  of  the  right  side  of 
the  mouth,  and  injuries  to  the  nostril,  eye,  and  ear,  together  with 
impairment  of  the  use  of  the  right  arm,  an  award  of  340  weeks' 
pay  was  unauthorized  under  the  New  Jersey  Act,  when  there  was 
no  evidence  that  the  injuries  stood  to  the  disability  in  the  propor- 
tion of  340  to  400,  but,  on  the  contrary,  the  evidence  showed  that 

40  (St.  1911,  c.  751,  pt.  2,  §  11,  amended  by  St.  1914,  c.  70S)  Floccher  v.  Fi- 
delity &  Deposit  Co.  of  Md.,  221  Mass.  54,  lOS  N.  E.  1032. 

41  Rep.  Nev.  Indus.  Com..  1913-14,  p.  21. 

The  loss  of  the  use  of  a  member  is  sufficient  to  entitle  the  injured  party  to 
compensation  as  provided  in  the  schedule,  whether  the  member  is  completely 
severed  or  not ;  the  action  of  the  surgeon  in  amputating  the  finger,  or  failing 
to  amputate  it,  not  being  controlling  (section  10,  part  II,  Workmen's  Com- 
pensation Act).  Lardie  v.  Grand  Rapids  Showcase  Co.,  Mich.  Wk.  Comp. 
Cases  (1916)    17. 

42  (Wk.  Comp.  Act,  §  15,  subd.  3)  Mockler  v.  Hawkes,  158  N.  Y.  Supp.  759. 

43  Kalucki  v.  American  Car  &  Foundry  Co.,  Mich,  Wk.  Comp.  Cases  (1916) 
390. 

44  Northwestern  Fuel  Co.  v.  Leipus,  161  Wis.  450,  152  N.  W.  856. 

HON.COMP. — 40 


§  162  workmen's  compensation  626 

the  proportion  of  the  extent  of  the  disability  was  much  less.  None 
of  these  injuries  are  specially  provided  for,  and  allowance  there- 
for must  be  under  the  provision  that  the  compensation  shall  bear 
such  relation  to  the  amounts  stated  in  the  schedule  as  the  disabili- 
ties bear  to  those  produced  by  the  injuries  named  in  the  schedule.*^ 
Awards  under  the  schedule  of  the  Washington  Act  are  dependent 
upon  surgical  discharge  and  proofs  when  the  extent  of  the  injury 
is  to  be  determined.*" 

There  is  nothing  in  the  New  York  Act  to  justify  concurrent  com- 
pensation for  temporary  total  disability  and  under  the  schedule  for 
total  disability,  and  such  a  construction  is  contrary  to  the  intention 
of  the  Legislature.*^ 

§  163.     Eye 

An  award  for  permanent  impairment  of  vision  is  unauthorized, 
where  the  injury  does  not  destroy  the  workman's  eye  or  vision,  or 
prevent  him  from  returning  to  work  and  earning  the  same  wages 
as  before  the  injury,  though  his  eye  be  permanently  injured.*^  The 
loss  being  only  partial,  he  is  entitled  to  compensation  measured 
only  by  his  lessened  wages.*^     Where  a  workman,  after  injury  to 

4  5  O'Connell  v.  Simms  Magneto  Co.,  85  N.  J.  Law,  64,  89  Atl.  922.  An 
award  made  under  section  2  of  the  New  Jersey  Act  must  be  according  to 
paragraph  11,  containing  the  schedule  of  amounts,  and  Is  limited  by  that 
paragraph.  (P.  L.  1911,  p.  136,  §  2,  par.  11)  Bateman  Mfg.  Co.  v.  Smith,  85 
N.  J.  Law,  409,  89  Atl.  979. 

46  (Wk.  Comp.  Act  Wash.  §  5)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  17. 

47  Fredenburg  v.  Empire  United  Rys.,  Inc.,  168  App.  Div.  618,  154  N.  Y. 
Supp.  351. 

4  8  Hirschkorn  v.  Ficge  Desk  Co.,  184  Mich.  239,  150  N.  W.  851. 

4  9  Cline  V.  Studebaker  Corporation  (Mich.)  155  N.  W.  519,  L.  R.  A.  1916C, 
1139. 

Where,  as  a  result  of  an  injury,  an  employ^  lost  50  per  cent,  of  the  vision 
in  one  eye,  and  his  earning  capacity  was  thereby  impaired,  he  was  entitled 
to  one-fourth  of  his  average  weekly  wages,  the  same  being  based  upon  one- 
fourth  loss  of  vision,  and  the  injury  as  a  matter  of  law  having  affected  his 


627  COMPENSATION  §   163 

his  eye,  has  10  per  cent,  of  the  normal  vision  without  glasses  and 
50  per  cent,  with  glasses,  he  is  not  entitled  to  compensation  for 
total  loss  of  the  eye,  on  the  ground  that  his  eyesight  has  been  di- 
minished 90  per  cent.,  since  it  is  his  duty  to  minimize  the  injury  by 
using  glasses.^**  But  where  the  injury  will  permanently  destroy 
the  sight  of  an  eye  unless  the  workman  submits  to  an  operation, 
full  compensation  should  be  awarded  for  loss  of  an  eye,  not  merely 
for  temporary  disability ;  the  proper  course  being  to  deal  with  the 
case  as  it  stands  at  the  time — that  is,  as  a  case  of  permanent  dis- 
ability— and  allow  compensation  for  100  weeks.  If  the  workman 
chooses  later  to  submit  to  an  operation  and  is  cured,  the  extent  of 
the  intervening  temporary  disability  will  be  known,  and  the  weekly 
compensation  can  be  terminated  on  application  to  the  court  for  a 
modification  of  the  order,  as  the  statute  authorizes.  If  the  opera- 
tion proves  a  failure,  the  award  for  permanent  disability  will 
stand. ^^  Loss  of  the  sight  of  an  eye  is  considered  total  where  the 
sight  remaining  in  the  eye  is  of  no  practical  value, ^^  and  an  opera- 
tion would  not  only  be  very  dangerous,  but  could  result  in  a  benefit 
of  no  value,  unless  there  be  a  total  loss  of  the  sight  of  the  other 
eye.^3    Where  the  evidence  showed  that  it  was  probable  that  there 

earning  capacity  to  that  extent.  Csupriuski  v.  Mechanical  Mfg.  Co.,  Bulletin 
No.  1,  111.,  p.  105. 

50  Id. 

51  Fryer  v.  Mt.  Holly  Water  Co..  87  N.  J.  Law,  .57,  93  Atl.  679. 

5  2  In  Cowles  v.  Wilkenda  Land  Co.,  1  Conn.  Comp.  Dec.  361,  where  it  ap- 
peared that  the  claimant  had  sustained  an  injury  to  his  eye  which  made  it 
impossible  for  him  to  distinguish  even  the  largest  objects  until  they  were  too 
close  to  avoid  them,  in  case  of  an  automobile  or  car,  and  that  the  eye  was 
of  no  practical  use  and  a  detriment  to  the  vision  in  the  other  eye,  it  was 
held  he  had  suffered  a  complete  and  permanent  loss  of  the  sight  of  the  eye 
within  section  12  of  the  Act. 

5  3  In  Lewis  v.  Goodyear  India  Rubber  Glove  Mfg.  Co.,  1  Conn.  Comp.  Dec, 
238,  where  the  claimant  had  no  present  sight  in  his  right  eye,  and  an  opera- 
tion to  restore  the  sight  would  be  iuadvisable,  very  dangerous,  and  probably 
fatal,  and  the  benefit  accomplislied  only  of  value  in  case  of  total  loss  of 
sight  of  the  other  eye,  it  was  held  the  employ^  had  suffered  a  "complete  and 


§  164  workmen's  compensation  628 

was  potential,  or  possible,  vision  in  the  right  eye  prior  to  the  oc- 
currence of  the  injury,  that  the  restoration  of  vision  following  an 
operation  would  be  useful  only  in  the  event  of  a  great  or  total  loss 
of  vision  in  the  uninjured  left  eye,  that  the  injury  destroyed  any 
possibility  of  ever  restoring  sight  to  the  right  eye,  and  that,  prior 
to  the  injury,  the  employe  had  less  than  one-tenth  vision  in  the 
right  eye,  he  was  not  entitled  to  a  specific  "additional"  compensation 
provided  for  in  case  of  reduction  of  vision  to  one-tenth  of  normal 
with  glasses.^*  A  schedule  giving  compensation  for  total  blind- 
ness of  one  eye  authorizes  compensation  under  a  relative  injury 
provision  for  partial  blindness  of  one  eye,  the  physical  organ  being 
retained.'' 

§  164.     Arm 

The  provision  of  an  Act  that  paralysis  of  a  member  shall  be 
equivalent  to  a  "loss"  of  the  member  does  not  authorize  classifying 

permanent  loss  of  the  sight  of  the  eye,"  compensable  under  the  schedule 
(Wk.  Comp.  Act,  pt.  B,  §  12,  subd.  [g]). 

6  4  Eldredge  v.  Employers'  Liab.  Assur.  Corp.,  Ltd.,  2  Mass.  Wk.  Comp. 
Cases,  639  (decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.). 

55  (St.  1913,  §  2391—9,  subd.  5;  Laws  1915,  c.  378)  Stoughton  Wagon  Co.  v. 
Myre  (Wis.)  157  N.  W^  522. 

"It  was  held  in  Northwestern  Fuel  Co.  v.  Leipus,  supra,  that  a  partial 
and  permanent  impairuit:it  of  the  strength  and  usefulness  of  an  arm  was 
not  within  the  class  of  injuries  scheduled  in  subdivision  5  of  section  2391 — 9, 
St.  1913,  because  that  schedule  referred  to  the  physical  loss  of  an  arm,  and 
mere  impairment  without  loss  of  the  member  could  not  be  held  to  be  in  that 
class.  The  case  before  us,  however,  is  plainly  not  within  that  reasoning. 
The  schedule  gives  a  certain  compensation  for  total  blindness  of  one  eye,  the 
physical  organ  itself  being  retained,  and  in  the  present  case  there  is  partial 
blindness  of  the  eye,  the  physical  organ  being  retained.  The  court  is  of 
opinion  that  this  injury  is  logically  within  the  statutory  class,  and  hence 
that  compensation  under  the  relative  injury  provision  of  the  statute  was 
properly  awarded.  The  relative  injury  clause  in  question  has  been  amended 
by  chapter  378,  Laws  of  1915,  so  that  there  is  now  no  doubt  of  the  legislative 
purpose  to  make  it  applicable  to  all  cases  of  permanent  disability  resulting 
from  injuries  to  those  members  of  the  body  or  its  faculties  named  in  the 
schedule,  although  the  member  be  not  severed  or  the  faculty  totally  lost."    Id. 


629  COMPENSATION  §  165 

a  mere  impairment  of  an  arm  as  a  loss  thereof.^®  An  award,  for 
a  partial  injury  to  the  motion  of  the  arm,  of  the  same  compensation 
as  the  statute  fixes  for  the  loss  of  the  arm,  is  not  in  compliance  with 
a  statutory  mandate  that  the  compensation  shall  bear  such  relation 
to  the  amounts  stated  in  the  schedule  as  the  disabilities  bear  to 
those  produced  by  the  injuries  named  in  the  schedule. °^ 

§  165.    Hand,  fingers,  foot,  and  ankle 

No  award  can  be  made  for  partial  loss  of  a  hand  under  a  sched- 
ule providing  compensation  only  for  a  total  loss.^**  A  hand  is  in- 
capable of  use  when  its  normal  use  has  been  entirely  taken  away; 
it  not  being  essential  that  the  incapacity  of  use  be  tantamount  to  an 
actual  severance  of  the  hand.°^  For  example,  where  the  workman's 
middle,  ring,  and  little  fingers  are  paralyzed,  and  there  is  such  an 
interference  with  the  circulation  that  the  hand  goes  to  sleep,  the 
hand  is  "incapable  of  use,"  though  there  is  a  small  amount  of  mo- 

56  Northwestern  Fuel  Co.  v.  Leipus,  161  Wis.  450,  152  N.  W.  856.  Obvious- 
ly the  "loss"  of  a  member  designated  in  the  schedule  has  reference,  not  to 
the  impairment  of  the  member  by  injury,  but  to  the  physical  loss  of  it.  All 
through  the  schedule  there  is  nothing  to  indicate  that  impairment  of  a  mem- 
ber was  intended  to  be  loss  of  a  member,  or  that  reduction  of  the  efficiency 
of  the  member  one-half  would  be  one-half  loss  of  the  member.  "The  loss  of 
an  arm  at  the  elbow,"  or  "the  loss  of  a  forearm  at  the  lower  half  thereof," 
does  not  mean  the  impairment  of  the  arm,  but  the  actual  physical  severance 
of  it.  The  fact  that  the  schedule  so  specifically  fixes  the  precise  injury  for 
which  compensation  is  allowed  excludes  the  idea  that  the  schedule  covers 
any  other  or  different  injury.  In  every  instance  the  loss  is  specifically  de- 
fined.   Id. 

5  7  (P.  L.  1913,  pp.  302,  304)  Barbour  Flax  Spinning  Co.  v.  Hagarty,  85  N.  J. 
Law,  407,  89  Atl.  919,  distinguishing  Banister  Co.  v.  Kriger,  84  N.  J.  Law, 
30,  85  Atl.  1027,  which  arose  under  the  earlier  statute,  wherein  the  period  of 
time  during  which  compensation  should  be  paid  was  fixed,  whereas,  under 
the  amendment  of  1913,  which  now  controls,  the  period  is  not  fixed. 

5  8  (Wk.  Comp.  Act  pt.  2,  §  10)  Carpenter  v.  Detroit  Forging  Co.  (Mich.)  157 
N.  W.  374, 

5  9  (St.  1911,  c.  751)  In  re  Meley,  219  Mass.  136,  106  N.  E.  559. 


§  165  workmen's  compensation  630 

tion  in  the  thumb  and  first  fing-er.^"  Injuries  between  the  elbow 
and  the  wrist  should  be  considered  injuries  to  the  hand.®^  Where 
the  injury  results  in  complete  loss  of  the  index,  second,  and  third 
fingers,  and  makes  the  fourth  finger  stiff  and  practically  useless, 
the  workman  is  usually  entitled  to  compensation  as  for  a  hand  ren- 
dered permanently  useless,  rather  than  for  loss  of  the  particular 
fingers;  ®^  but  it  has  been  held  that  where  a  workman  lost  the  use 
of  four  fingers,  apparently  retaining  the  use  of  the  rest  of  his  hand, 
it  was  not  clear  that  the  claimant  should  be  allowed  for  the  loss  of 
the  use  of  the  entire  hand,  the  court  saying:  "It  is  now  claimed 
that  claimant  did  not  lose  the  use  of  the  hand,  but  only  of  the  four 
fingers,  and  that  the  usefulness  of  the  remainder  of  the  hand,  in- 
cluding the  thumb,  was  practically  unimpaired.  These  seem  to  be 
the  conceded  facts.  I  am  not  clear  that  upon  these  conceded  facts 
the  claimant  should  have  been  allowed  for  the  loss  of  the  use  of 
the  entire  hand.  While  the  four  fingers  were  stiffened,  the  thumb 
was  uninjured,  and  the  claimant  is  unquestionably  better  off  than 

«o  Floccher  v.  Fidelity  &  Deposit  Co.  of  Md.,  221  Mass.  54,  108  N.  E.  1032. 

61  Rockwell  V.  Lewis,  168  App.  Div.  674,  1.j4  N.  Y.  Supp.  803;  State  ex  rel. 
Kennedy  v.  District  Court,  129  IMinn.  91,  151  N.  W.  530,  which  cites  (N.  J. 
Sup.)  88  Atl.  953. 

In  a  hearing  under  the  Wk.  Comp.  Act  to  ascertain  the  compensation  to 
be  awarded  an  injured  employ^,  where  there  are  permanent  injuries  to  the 
hand  and  arm  below  the  elbow,  the  court  should  determine  the  percentage 
of  total  disability  of  the  hand  and  fix  the  compensation  accordingly.  Where 
the  same  accident  results  also  in  permanent  partial  disability  to  the  arm 
above  the  elbow,  the  court  should  determine  the  total  disability  of  the  arm 
as  a  whole,  including  the  forearm  and  hand,  and  fix  the  compensation  accord- 
ingly. It  is  improper  in  such  a  case  to  divide  the  injuries  into  two  units, 
those  to  the  hand  and  those  to  the  arm.  (Laws  1913,  c.  467;  Gen.  St.  1913, 
c.  S4a)  State  ex  rel.  Kennedy  v.  District  Court,  supra. 

A  workman's  forearm  and  hand  were  impaired  by  an  accident  to  the  ex- 
tent of  75  per  cent.,  and  his  upper  arm  to  the  extent  of  8  per  cent.  The 
amount  awarded  was  75  per  cent,  of  what  the  statute  fixes  for  an  arm.  It 
was  held  that  this  award  was  not  necessarily  incongruous  with  the  statutory 
provision  making  amputation  between  the  elbow  and  the  wrist  equivalent  to 
the  loss  of  a  hand  only.    Blackford  v.  Green,  87  N.  J.  Law,  359,  94  Atl.  401. 

«2  Rockwell  V.  Lewis,  168  App.  Div.  674,  154  N.  Y.  Supp.  893. 


631  COMPENSATION  §    165 

if  the  hand  had  been  taken  off  or  rendered  entirely  useless.  In  my 
judgment,  it  is  unnecessary  to  determine  this,  because  the  award 
was  made  by  consent  of  the  attorney  representing  the  appellants, 
and,  while  the  appellants  afterward  claimed  that  he  exceeded  his 
authority,  we  are  unwilling  to  interfere  with  the  determination  of 
the  Commission  that  the  award  should  stand."  ^^  Similar  holdings 
have  been  made  in  other  cases,®*  but  the  rule  is  to  the  contrary  in 
Illinois. "^^  Where  the  accident  necessitating  amputation  of  the  first 
phalange  of  the  third  finger  is  followed  by  cellulitis  of  the  joints, 
which  makes  the  remainder  of  the  finger  practically  useless,  the  in- 
jury is  equivalent  to  the  loss  of  the  finger,  and  claimant  cannot  re- 
cover more  than  the  specific  amount  provided  for  such  loss  by  con- 
tending that  he  has  not  lost  the  finger,  and  so  bringing  the  injury 
under  the  relative  injury  clause. ®®  In  awarding  compensation  the 
hands  may  be  considered  separately,  and,  after  compensation  has 

6  3  Cunningham  v.  Buffalo  C.  &  B.  Rolling  Mills  (Sup.)  155  N.  Y.  Supp.  797. 

64  In  De  Vito  v.  Atlantic  Insulated  Wire  &  Cable  Co.,  1  Conn.  Comp.  Dec. 
407,  where  the  claimant's  injury  necessitated  the  amputation  of  the  four 
fingers  of  the  right  hand,  but  left  the  functions  of  the  thumb  unimpaired, 
it  was  held  he  had  not  suffered  "a  complete  and  permanent  loss  of  the  use 
of  the  hand,"  entitling  him  to  an  award  under  the  schedule,  though  he  was 
awarded  for  the  loss  of  four  fingers.  And  in  Kilbride  v.  Pratt  &  Whitney 
Co.,  1  Conn.  Comp.  Dee.  688,  where  the  evidence  showed  that  there  was  a 
large  scar  and  deformity  on  the  back  of  the  workman's  hand,  and  thai  he 
could  not  hold  things  with  the  hand,  and  the  medical  evidence  estimated  a. 
45  per  cent,  impairment  of  the  hand,  it  was  held  the  total  and  permanent 
loss  of  the  use  of  the  hand  had  not  been  shown. 

Under  a  schedule  allowing  60  weeks'  compensation  for  the  loss  of  all  the 
fingers  of  one  hand,  where  there  was,  according  to  medical  evidence,  apt  to 
be  a  little  use  of  the  first  finger  and  slight  movement  of  the  proximal 
joints,  after  a  careful  operation,  compensation  was  awarded  for  50  weeks. 
Higgins  V.  Hanover  &  Butler,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  37. 

6  5  The  loss  of  the  first,  second,  third,  and  fourth  fingers  of  a  right  hand, 
with  palm  and  thumb  remaining  intact,  constitutes  a  permanent  and  com- 
plete loss  of  the  hand,  under  paragraph  (e),  section  8.  Swickard  v.  Arrow 
Motor  Cartage  Co.,  Bulletin  No.  1,  111.,  p.  172. 

6  6  (Consol.  Laws,  c.  67,  §  15,  subd.  3)  Feinman  v.  Albert  Mfg.  Co.,  170  App. 
Div.  147,  155  N.  Y.  Supp.  909. 


§  165  workmen's  compensation  632 

been  allowed  for  injuries  rendering  one  hand  incapable  of  use,  ad- 
ditional compensation  can  be  given  for  incapacity  to  use  a  finger  of 
the  other  hand."^ 

Where  an  employe  suffers  the  loss  of  two  joints  of  his  index 
finger  and  an  injury  to  his  thumb,  in  an  accident  in  his  employ- 
ment, he  is  entitled  to  compensation  under  the  Illinois  Act,  both 
for  the  15  weeks  of  incapacity  due  to  the  accident  and  also  compen- 
sation for  the  permanent  disfigurement  of  his  hand."* 

Where  a  thumb  is  so  injured  that  a  piece  of  tendon  and  flesh  are 
destroyed,  compensation  is  properly  awarded  for  loss  by  severance 
of  one  phalange  of  the  thumb,  rather  than  for  loss  of  the  thumb."* 
Where  an  arm  is  broken  and  an  abscess  develops,  resulting  in 
ankylosis  of  the  thumb,  making  it  permanently  useless,  compensa- 
tion is  recoverable  for  partial  injury  to  the  thumb.'^"  Under  the 
Nevada  Act,  the  loss  of  the  distal  or  second  phalange  of  the  thumb, 
or  the  distal  or  third  phalange  of  the  first,  second,  third,  or  fourth 
finger,  is  considered  a  permanent  partial  disability  and  equal  to  the 
loss  of  one-half  of  such  thumb  or  finger;  and  compensation  is  one- 
half  of  the  amount  specified  for  the  loss  of  the  entire  thumb,  or  first, 
second,  third,  or  fourth  finger.''^ 

Where  a  portion  of  the  second  phalange  of  the  workman's  index 
finger  is  amputated,  compensation  should  be  awarded  on  the  basis 
of  total  loss  of  the  finger.'^^  ^n  award  of  one-half  the  amount  speci- 
fied for  loss  of  a  finger  is  also  proper,  where  the  injury  necessitates 

6  7  In  re  Meley,  219  Mass.  136,  106  N.  E.  559. 

6  8  (Act  of  1912,  Jones  &  A.  Ann.  St.  1913,  par.  5453,  §  5,  subds.  "a,"  '%" 
and  "c")  Waiters  v.  Kroehler  Mfg.  Co.,  1S7  111.  App.  548. 

0  9  Weber  v.  American  Silk  Spinning  Co.  (K.  I.)  95  Atl.  603. 

7  0  Newcomb  v.  Albertson,  S5  N.  J.  Law,  435,  89  Atl.  92S. 
71  Rep.  Nev.  Indus.  Com.  1913-14,  p.  24. 

7  2  Fortino  v.  Merchants'  Dispatch  Transportation  Co.  (Sup.)  156  N.  Y. 
Sujip.  262. 

In  Illinois,  the  loss  of  more  than  one  phalange  of  a  finger  or  toe  is  equiva- 
lent to  the  loss  of  the  entire  member.  McClennan  v.  Allith  Prouty  Co.,  Bul- 
letin No.  1,  111.,  p.  116. 


633  COMPENSATION  §   165 

amputation  of  the  third  finger  of  the  right  hand,  so  that  substan- 
tially all  the  outer  phalange  is  cut  off."  But  the  mere  pinching  of 
a  finger,  which  does  not  result  in  permanent  injury,  is  not  to  be 
considered  as  loss  of  one-half  of  a  finger/*  Distinct  allowances 
may  be  made  for  injury  to  different  fingers,^^  and  compensation 
may  be  allowed  for  temporary  injury  to  one  finger  and  permanent 
injury  to  another.^*'  Separate  awards  under  the  schedule  for  the 
loss  of  a  thumb  and  a  finger  run  consecutively,  and  not  concur- 
rently." And  where  there  is  incapacity  due  to  the  laceration  of 
a  finger,  as  well  as  the  loss  of  one  phalange  of  the  third  finger 
and  the  entire  fourth  finger,  compensation  will  be  awarded  sep- 
arately for  each  injury,  the  payments  to  run  consecutively.^^ 

73  In  re  Petrie,  215  N,  Y.  33.5,  109  N.  E.  549. 

Amputation  of  about  one-tbird  of  tbe  bone  of  the  distal  plialange,  materi 
ally  interfering  with  the  use  of  the  finger,  authorizes  an  award  of  one-hall 
the  amount  allowable  for  loss  of  a  finger.  (Laws  1914,  c.  41,  §  15,  subd.  3) 
In  re  Petrie,  165  App.  Div.  561,  151  N.  Y.  Supp.  307. 

74  (Laws  1914,  c.  41,  §  15,  subd.  3)  In  re  Petrie,  supra. 

7  5  Maziarski  v.  Ohl  &  Co.,  86  N.  J.  Law,  692,  93  Atl.  111.  That  distinct  dam- 
age may  be  allowed  for  injury  to  each  finger  is  sutticiently  indicated  by  the 
provision  of  the  statute  that  the  amount  received  for  more  than  one -finger 
shall  not  exceed  the  amount  provided  in  the  schedule  for  the  loss  of  a  hand. 
Id.  Where  several  fingers  are  partly  injured  by  the  same  accident,  the  total 
award  is  properly  composed  of  separate  awards  for  the  injury  to  each  finger, 
as  fixed  by  the  statute,  not  to  exceed,  however,  the  amount  provided  for  loss 
of  a  hand.  The  weekly  payments  in  such  case  do  not  run  concurrently. 
George  W.  Helme  Co.  v.  Middlesex  Common  Pleas,  84  N.  J.  Law,  531,  87 
Atl.  72. 

7  6  Maziarski  v.  Ohl  &  Co.,  86  N.  J.  Law,  692,  93  Atl.  111. 

Where  a  workman  got  his  fingers  smashed,  and  some  of  them  amputated, 
and  a  temporary  disability  resulted,  partly  due  to  an  infection  preventing 
his  going  to  work,  damages  were  properly  allowed  both  under  clause  "a"  and 
clause  "c,"  even  though  the  damages  would  exceed  the  maximum  recoverable 
under  clause  "b."  (P.  L.  1911,  p.  137,  §  2,  par.  11)  Nitram  Co.  v.  Creagh,  84 
N.  J.  Law,  243,  86  Atl.  435. 

7  7  Fredenburg  v.  Empire  United  Rys.,  Inc.,  168  App.  Div.  618,  154  N.  1. 
Supp.  351. 

78  Drapeau  v.  Stoddard,  1  Conn.  Comp.  Dec.  590. 

In  Pascale  v.  S.  L.  &  G.  H.  Rogers  Co.,  1  Conn.  Comp.  Dec.  33,  compensation 


§  165  workmen's  compensation  634 

The  clause  of  the  New  Jersey  Act  providing  for  a  minimum  com- 
pensation of  $5  applies  where  the  injury  is  to  the  index  finger  and 
the  middle  finger  of  the  left  hand ;  that  to  the  index  finger  being 
temporary  and  that  to  the  other  finger  being  equal  to  the  loss  of 
one-half  the  phalange  of  that  finger/^  Where  an  employe  earning 
$8.50  per  week  loses  the  first  phalange  of  the  index  finger,  he  is 
entitled  to  $5  per  week  for  thirty-five  weeks,  besides  the  cost  of  rea- 
sonable medical  and  hospital  services  and  medicines  for  two 
weeks. ^° 

Compensation  for  permanency  of  the  injury  cannot  be  allowed 
under  the  Massachusetts  Act,  in  addition  to  an  allowance  for  in- 
capacity for  work,  where  one-half  inch  of  the  first  phalange  of  the 
left  index  finger  was  severed,  rendering  the  phalange  permanently 
incapable  of  use,  but  not  resulting  in  permanent  incapacity  for  use 
of  the  entire  finger.^^  But  where  the  employe  received  a  personal 
injury  causing  the  right  hand  and  the  little  finger  of  the  left  hand 
to  be  permanently  incapacitated  for  use,  he  is  entitled  to  "addi- 
tional" compensation  for  fifty  weeks  for  the  permanent  incapacity 
of  the  hand,  and  twelve  weeks  for  the  permanent  incapacity  of  the 
finger.*^ 

The  loss  of  a  part  of  the  bone  of  any  phalange  constitutes  the  loss 
of  that  phalange  for  the  purpose  of  the  Illinois  Act.^^ 

was  awarded  separately  for  injuries  causing  the  amputation  of  parts  of  two 
different  fingers,  35  weeks  for  one  and  7  for  the  other. 

79Maziarsld  v.  Ohl  &  Co.,  86  N.  J.  Law,  692,  93  Atl.  110;  Banister  Co.  v. 
Ki-iger,  84  N.  J.  Law,  30,  85  Atl.  1027.  In  Nitram  Co.  v.  Court  of  Common 
I'leas,  84  N.  J.  Law,  243,  86  Atl.  435,  an  allowance  for  both  temporary  injury 
and  permanent  injury  was  sustained.  ^ 

80  (P.  L.  1911,  p.  134,  §  2,  par.  14)  James  A.  Banister  Co.  v.  Kriger,  84  N. 
J.  Law,  30,  85  Atl.  1027  (rehearing  denied  S9  Atl.  923). 

81  (St.  1911,  c,  751,  pt.  2,  §  11,  amended  by  St.  1913,  c.  696)  In  re  Con- 
tractors' Mut.  Liab.  Insur.  Co.,  217  Mass.  511,  105  N.  E.  376. 

8  2  Meley  v.  Mass.  Employes'  Insur.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  404 
(decision  of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.,  also  by  Sup.  Jud.  Ct, 
219  Mass.  136,  106  N.  E.  559). 

83  Palmer  v.  Scheidenhelm,  Bulletin  No.  1,  111.,  p.  135. 


!635  COMPENSATION  §  166 

The  fact  that  the  workman  is  totally  disabled  by  reason  of  inju- 
ries to  two  fingers  for  21/2  months,  and  that  the  injury  resulted  in  a 
partial  loss  of  the  use  of  his  fingers,  which  condition  is  permanent, 
is  such  as  to  make  a  compensation  award  of  50  per  cent,  of  his 
average  weekly  wage,  for  a  period  of  43  weeks,  a  reasonable  award 
under  the  Michigan  Act.^* 

An  allowance  of  more  for  an  injury  to  an  ankle  than  the  stipu- 
lated compensation  for  the  loss  of  a  foot  is  authorized.  Whether 
the  allowance  should  equal  such  stipulated  compensation  is  a  ques- 
tion to  be  determined  at  the  trial. ^^  Where  it  appears  that,  though 
the  claimant's  foot  was  not  actually  cut  off,  it  is  wholly  useless  and 
gives  no  better  results  than  an  artificial  foot,  besides  being  painful 
to  use,  compensation  will  be  awarded  for  the  complete  and  perma- 
nent loss  of  the  use  of  the  foot.^® 

§  166.     Disfigurement 

In  order  to  entitle  one  to  compensation  for  disfigurement,  the  dis- 
figurement must  usually  be  of  such  a  serious  and  permanent  char- 
acter as  to  either  directly  or  indirectly  impair  his  earning  capacity 
or  ability  to  secure  work  in  the  labor  markets  of  the  world." 

The  highest  court  of  England  has  decided  that  an  injury  or  dis- 

84  Ridler  V.  Little  Co.,  Op.  Micli.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  27. 

8  5  (P.  L.  1911,  p.  134,  §  2,  par.  11)  Rakiec  v.  Delaware,  L.  &  W.  K.  Co.  (j\. 
J.  Sup.)  S8  Atl.  953. 

8  6  Mahoney  v.  Seymour  Mfg.  Co.,  1  Conn.  Comp.  Dec.  292. 

8  7  Billnian  v.  Two  Rivers  Coal  Co.,  Bulletin  No.  1,  111.,  p.  69.  Disfigure- 
ment, to  entitle  applicant  to  compensation,  must  in  reality  disfigure  to  the 
extent  that  it  will  interfere  with  his  obtaining  employment.  Harpestad  v. 
Alexander,  Bulletin  No.  1,  111.,  p.  14. 

A  scar  on  side  of  head  about  three-quarters  of  an  inch  wide  is  such  dis- 
figurement as  to  affect  the  workman's  earning  capacity,  as  it  makes  him 
less  aggressive  and  more  timid.  Id.  But  the  loss  of  a  tooth  that  has  been 
replaced  by  a  gold  crown  does  not  constitute  a  disfigurement  of  the  face, 
under  paragraph  (c),  §  8,  of  the  Workmen's  Compensation  Act.  Niemark  v. 
West  Coast  Roofing  Co.,  Bulletin  No.  1,  111.,  p.  56. 


§  1G6  workmen's  compensation  63& 

figurement  which  destroys  or  impairs  the  injured  workman's  ca- 
pacity to  get  work  is  an  element  to  be  taken  into  consideration  in 
the  assessment  of  compensation.^^  Under  the  Illinois  Act,  where 
a  workman  loses  the  tips  of  two  fingers  of  his  right  hand,  impairing 
the  sense  of  feeling  in  these  fingers,  and  incapacitating  him  per- 
manently from  doing  the  kind  of  work  in  which  he  was  engaged 
at  the  time  of  the  accident,  he  is  entitled  to  compensation  for  dis- 
figurement of  his  hand.®®  And  where  an  employe  sufifers  the  loss  of 
two  joints  of  his  index  finger  and  an  injury  to  his  thumb,  in  an  ac- 
cident in  his  employment,  he  is  entitled  to  compensation  for  the 
permanent  disfigurement  of  his  hand.®"  Under  the  New  York  Act, 
where  an  employe's  ear  is  bitten  by  a  horse  and  amputation  neces- 
sitated, leaving  a  disfigurement,  but  not  impairing  the  employe's 
efficiency,  the  injury  does  not  come  in  the  class  of  scheduled  dis- 
abilities."^ It  is  otherwise,  however,  where  total  deafness  results 
and  impairs  the  employe's  industrial  efficiency."^ 

8  8  Rail  V.  Hunt,  81  L.  J.  K.  B.  782,  787. 

8  9  (Wk.  Comp.  Act  1911,  Jones  &  A.  Ann.  St.  1913,  par.  5453,  §  5)  Steven- 
son V.  Illinois  Watch  Case  Co.,  186  III.  App.  418. 

90  (Act  of  1912,  Jones  &  A.  Ann.  St.  1913,  par.  5453,  §  5,  subsecs.  a,  b,  and 
c)  Watters  v.  Kroehler  Mfg.  Co.,  187  111.  App.  548. 

91  Shinnick  v.  Clover  Farms  Co.,  169  App.  Div.  236,  154  N.  Y.  Supp.  423. 

92  Wagner  v.  American  Bridge  Co.  (Sup.)  158  N.  Y.  Supp.  1043. 


,g37  COMPENSATION  §   167 

ARTICLE  III 

DEATH  BENEFITS 

Section 

167.  Computation  and  amount  of  benefit. 

168.  California. 

169.  Minnesota. 

170.  New  Jersey. 

171.  New  Yorlv. 

172.  Washington. 

173.  Wisconsin. 

174.  Federal  Act. 

§  167.     Computation  and  amount  of  benefit 

Under  the  English  Act,  and  state  Acts  similar  to  it  in  this  respect, 
the  compensation  payable  to  dependents  is  an  amount  reasonable 
and  proportionate  to  their  injury.^^  The  English  Workmen's  Com- 
pensation Act  provides  that  in  cases  of  partial  dependency  the 
amount  recoverable  shall  be  reasonable  "and  proportionate  to  the 
injury  to  the  said  dependents."  This  language  required  that  the 
English  courts  in  cases  of  partial  dependency  inquire  whether  de- 
ceased was  a  financial  asset  and  whether  his  death  was  a  financial 
injury  to  the  dependent.  On  the  other  hand,  the  Connecticut  Act 
makes  the  sole  test  one  of  dependency  upon  the  earnings  of  the 
deceased  at  the  time  of  the  injury  and  fixes  the  minimum  award 
in  cases  where  the  injury  results  in  death.  It  follows,  therefore, 
that  in  determining  under  the  latter  Act  the  extent  of  dependency 
upon  a  minor,  it  is  immaterial  whether  the  cost  of  the  minor's  sup- 
port used  up  all  his  wages,  where  the  dependent  was  legally  entitled 

8  3  In  England  the  amount  payable  to  dependents  is  to  be  reasonable  and 
proportionate  to  their  injury,  and  the  exact  amount  is  determined  for  each 
case.  "The  sum  is  to  be  proportioned  to  the  injury.  It  is  for  the  Committee 
to  say  what  is  reasonable  and  proportionate  to  the  injury."  Hodgson  v. 
Owners  of  West  Stanley  Colliery  (1910)  3  B.  W.  C.  C.  267. 

The  purpose  of  the  Compensation  Act  was  to  provide  a  percentage  income 
to  the  widow,  or  dependent  next  of  kin,  based  upon  their  pecuniary  loss.  State 
ex  rel.  Gaylord  Farmer's  Co-op.  Creamery  Ass'n  v.  District  Court,  128  Minn 
486,  151  N.  W.  182. 


§  167  workmen's  compensation  638 

to  receive  the  wages  of  the  minor  and  to  use  them  for  the  support  of 
the  family.®* . 

Under  the  Massachusetts  Act,  the  sum  to  be  paid  is  measured 
by  the  wages  of  the  deceased  workman,  not  by  the  injury  done  to 
the  dependent.  Where  the  dependents  were  only  partly  dependent 
upon  the  earnings  of  the  deceased,  the  amount  to  be  paid  is  "a  week- 
ly compensation  equal  to  the  same  proportion  of  the  weekly  pay- 
ments made  for  the  benefits  of  persons  wholly  dependent  as  the 
amount  contributed  by  the  employe  bears  to  the  annual  earnings 
of  the  deceased  at  the  time  of  his  injury."  The  amount  to  be  paid 
in  case  the  dependent  was  partly  dependent  is  to  be  measured  by 
that  proportion  of  the  average  weekly  wages  of  the  deceased  which 
the  amount  of  his  wages  contributed  by  him  to  the  dependent's  sup- 
port bore  to  the  amount  of  his  annual  earnings,  without  regard  to 
the  benefits,  if  any,  received  by  the  deceased  from  the  dependents.®^ 
Where  an  employe  receives  board  from  a  dependent  to  whose  sup- 
port he  contributed,  the  value  of  such  board  is  not  to  be  deducted 
from  his  contributions  in  determining  percentage  of  dependency.®" 

0  4  Malioney  v.  Gamble-Desmond  Co.,  90  Conn.  255,  96  Atl.  1025. 

In  Koetlier  v.  Union  Hardware  Co.,  1  Conn.  Comp.  Dec,  38,  it  was  held 
that,  where  a  son  conti-ibuted  practically  all  of  his  earnings  to  a  family 
fund,  all  of  which  was  required  for  the  support  of  the  family,  the  board, 
room,  clothing,  washing,  etc.,  which  he  received  were  not  to  be  deducted  in 
computing  the  amount  of  compensation. 

9  5  (Wk.  Comp.  Act,  §  6)  Gove  v.  Royal  Indemnity  Co.,  223  Mass.  1S7,  111  N. 
E.  702. 

Where  all  of  a  minor's  weekly  earnings,  amounting  to  $5.67,  were  given 
by  him  to  his  father  to  support  his  father's  family,  consisting  of  a  wife  and 
several  minor  children,  including  decedent,  the  father  was  entitled  to  $4  per 
week  for  300  weeks  from  the  date  of  the  fatal  injury,  though  he  paid  the  ex- 
pense of  the  deceased  son's  maintenance  to  the  extent  of  at  least  $2.50  per 
week.  (St.  1911,  c.  751,  pt.  2,  §  6)  In  re  Murphy,  218  Mass,  278,  105  N.  E. 
635. 

8  6  Gove  V.  Royal  Indemnity  Co.,  223  Mass.  187,  111  N.  E.  702. 

The  employe  contributed  the  sum  of  $12.50  weekly  to  the  dependents,  $10 
in  cash  to  his  mother,  and  $2.50  in  groceries,  and  the  sole  question  at  issue 
was  whether  the  dependents  were  entitled  to  the  payment  of  a  weekly  com- 


C39  COMPENSATION  §   167 

No  deduction  will  be  made  from  death  benefits  for  the  time  during 
which  the  employe  worked  after  the  injury ,^^  or  for  payments  made 
to  him  by  way  of  compensation.®^ 

pensation  equal  to  the  same  proportion  of  the  weekly  payments  for  the  benefit 
of  persons  wholly  dependent  as  the  amount  contributed  by  the  employg  to 
the  partial  dependents  bears  to  the  average  annual  earnings  of  the  deceased, 
or  whether  from  the  amount  so  contributed  the  value  of  his  board  should  be 
deducted.  The  Committee  held  that  the  value  of  board  should  not  be  deduct- 
ed in  computing  the  compensation.  Hayden  v.  Mass.  Employes'  Insur.  Ass'n, 
2  Mass.  Wk.  Comp.  Cases,  198  (decision  of  Com.  of  Arb.).  The  employe,  a 
minor,  contributed  all  of  his  wages,  amounting  to  $5.67  a  week,  to  his  father. 
The  father  was  not  wholly,  but  only  partially  dependent  upon  the  wages  of 
the  son  for  support,  and  the  question  is:  Is  the  father  entitled  to  the  mini- 
mum of  $4  a  week,  or  should  there  be  a  deduction  from  the  minimum  amount, 
on  account  of  the  fact  that  the  employe,  while  contributing  all  his  wages  to 
his  father,  was  supported  by  the  father,  and  his  maintenance  was  at  least 
$2.50  a  week?  The  Board  decided  and  held  that  the  employe  contributed  his 
entire  earnings  to  the  dependent,  a  proportion  of  100  per  cent.,  and  that  there 
is  due  the  dependent  100  per  cent,  of  the  minimum  compensation  provided  by 
the  statute ;  that  is,  the  payment  of  $4  a  week  for  300  weeks  from  the  date 
of  the  injury.  Murphy  v.  American  Mut.  Liab.  Insur.  Co.,  2  Mass.  Wk.  Comp. 
Cases,  817  (decision  of  Indus.  Ace.  Bd.,  affirmed  by  Sup.  Jud.  Ct,  218  Mass. 
278,  105  N.  E.  635). 

9  7  (St.  1911,  c.  751,  part  2,  §  6)  In  re  Cripp,  216  Mass.  586,  104  N.  E.  565, 
Ann.  Cas.  1915B,  828. 

9  8  The  widow,  as  sole  dependent  of  a  deceased  employe,  was  entitled  to 
compensation  from  the  date  of  the  last  payment  to  the  deceased  employe  for 
a  period  not  to  exceed  300  weeks  from  the  date  of  the  accident,  without  any 
deduction  being  made  for  payments  made  to  the  employe  for  loss  of  a  finger. 
(St.  1911,  c.  751,  pt.  2,  §  11  [d],  as  amended  by  St.  1912,  c.  571,  §  2,  and  St. 
1913,  c.  696,  §  1)  In  re  Nichols,  217  Mass.  3,  104  N.  E.  566,  Ann.  Cas.  1915A, 
862.  The  employ^  received  an  injury  which  necessitated  the  amputation  of 
the  third  finger  of  the  right  hand.  Later  blood  poisoning  set  in  and  death  en- 
sued. Under  section  11  (d),  part  II,  the  employ^  was  entitled  to  the  payment 
of  half  his  weekly  wages  for  a  period  of  12  weeks,  in  addition  to  the  pay- 
ments due  on  account  of  incapacity  for  work;  the  amputation  of  the  finger 
being  one  of  the  "specified  injuries"  for  which  the  specified  compensation 
named  should  be  paid  "in  addition  to  all  other  compensation."  Subsequent 
to  the  payment  of  the  "additional  compensation"  the  employe  died,  and  the 
insurer  requested  the  Board  to  rule  as  to  whether  the  amount  paid  as  "ad- 
ditional compensation"  should  not  be  properly  deducted  from  the  compensation 
due  the  widow.    The  Industrial  Accident  Board  ruled  that  the  statute  makes 


§  168  workmen's  compensation  640 

§  168.     California 

The  California  Act  does  not  require  that  all  payments  made  by 
an  employe  to  the  support  of  his  dependents  shall  be  paid  from 
his  earnings  for  the  period  during  which  such  contributions  were 
made.  It  requires  merely  that  the  extent  of  partial  dependency  be 
fixed  at  such  proportion  of  three  times  the  average  annual  earn- 
ings "as  the  annual  amount  devoted  by  the  deceased  to  the  support 
of  the  person  or  persons  so  partially  dependent  bears  to  such  av- 
erage earnings."  °^  Where  a  partial  dependency  is  clearly  estab- 
lished, but  there  is  no  direct  evidence  to  show  the  amount  of  con- 
tributions made,  such  partial  dependency  may  be  computed  by 
reference  to  the  earnings  of  the  deceased  employe  during  the  year 
preceding  his  death  and  deducting  therefrom  his  known  expendi- 
tures, making  a  reasonable  allowance  for  the  cost  of  room  and 
board,  clothing,  and  incidental  spending  nioney,^  or  by  estimating 

it  obligatory  upon  the  insurer  to  pay  the  additional  compensation,  and  that 
no  provision  is  made  for  its  deduction  if  death  results  from  the  injury. 
Nichols  V.  London  Guarantee  &  Accident  Co.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases, 
814  (decision  of  Indus.  Ace.  Rd.,  affirmed  by  Sup.  Jud.  Ct.,  217  Mass.  3,  104 
N.  E.  566,  Ann.  Cas.  1915A,  862). 

9  9  Mahoney  v.  Yosemite  Valley  R.  R.  Co.,  2  Cal.  T.  A.  C.  Dec.  150. 

Where  an  employ^  was  shown  to  have  contributed  various  sums  to  a  sister 
for  her  support  until  his  death,  and  one  of  such  contributions  was  the  sum  of 
$230  received  from  the  proceeds  of  a  life  insurance  policy  canceled  by  him, 
this  amount  may  be  included  in  the  annual  contribution  for  support  used  as  a 
basis  for  determining  the  extent  of  dependency.    Id. 

1  Parsley  v.  O'Brien  Bros.,  1  Cal,  I.  A.  C.  Dec.  494. 

Where  partial  dependency  is  well  established,  but  by  reason  of  the  fail- 
ure of  the  dependents  to  keep  records  of  the  contributions  made  by  the  de- 
ceased employ^  it  is  impossible  to  determine  directly  the  amount  of  his  con- 
tributions, it  may  be  determined  by  subtracting  from  the  total  earnings  of 
the  deceased  during  the  preceding  year  his  estimated  expenditures,  including 
the  estimated  value  of  board  and  room  received  at  home ;  it  being  shown 
that  he  turned  in  for  the  support  of  his  family  all  of  his  wages,  except  cer- 
tain amounts  retained  for  personal  purposes.  Donovan  v.  Holy  Cross  Ceme- 
tery, 1  Cal.  I.  A.  C.  Dec.  510.  Where,  the  fact  of  partial  dependency  being 
established,  the  applicant  claimed  to  have  received  $30  per  month  from  him, 
hut  the  known  wages  and  expenditures  of  the  deceased  indicated  that  he 


641  COMPENSATION  §   168 

the  income  of  the  dependent  relatives  from  all  other  sources  and 
finding  the  difference  between  this  amount  and  the  cost  of  main- 
tenance of  the  whole  family  for  the  same  period.^  Where  contribu- 
tions made  by  a  deceased  employe  are  shown  to  have  been  in  ir- 
regular amounts,  covering  a  period  of  fifteen  months,  the  annual 
contribution  will  be  computed  by  reducing  the  total  amount  given 
for  support  during  this  time  to  a  proportionate  amount  for  a  period 
of  twelve  months.  The  Act  provides  as  a  basis  for  determining  a 
death  benefit  based  upon  partial  dependency  the  annual  contribu- 
tion devoted  by  the  deceased  employe  to  the  support  of  the  de- 
pendent.^ In  fixing  the  extent  of  dependency  in  cases  where  no 
particular  sum  is  regularly  paid  over  by  a  son  who  lives  with  his 
aged  parents  and  is  their  principal  support,  and  the  parents  do  not 
look  to  any  one  else  for  support,  it  is  proper  to  consider  all  the  cir- 
cumstances in  the  conduct  of  the  household,  and  to  have  regard  to 
any  other  source  of  income  the  family  may  have.*  Where  a  son 
contributes  one-half  his  earnings  to  his  family,  consisting  of  a  sister, 
mother,  and  father,  one-sixth  of  his  average  annual  income  is  es- 
timated as  having  been  devoted  to  the  sister's  support.^ 

Proof  of  partial  dependency  need  not  be  made  by  direct  and  ir- 
refragable evidence.  A  technical  and  rigid  requirement  to  estab- 
lish the  degree  of  dependency  by  this  sort  of  evidence  would  in 
many  cases  result  in  failure  to  establish  any  degree  of  dependency 

could  not  well  have  contributed  more  than  $27.50  a  month,  the  extent  of  the  par- 
tial dependency  was  determined  upon  the  basis  of  contributions  at  the  month- 
ly rate  of  $27.50.    Dennehy  v.  Flinn  &  Tracy,  1  Cal.  I.  A.  C.  Dec.  302. 

2  Matthiesen  v.  Pacific  Gas  &  Electric  Co.,  1  Cal.  I.  A.  C.  Dec.  398.  When 
the  fact  of  dependency  is  established,  but  the  evidence  on  the  extent  thereof 
is  not  exact,  the  amount  contributed  may  be  estimated  from  the  alleged  con- 
tributions to  the  dependent,  his  average  earnings,  the  living  expenses  of  the- 
dependent,  and  her  other  sources  of  income,  if  any.  Bristol  v.  Gartland,  1 
Cal.  T.  A.  C.  Dec.  632. 

8  Mahoney  v.  Yosemite  Valley  R.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  150. 

*  Binkley  v.  Western  Pipe  &  Steel  Co.,  1  Cal.  I.  A.  C.  Dec.  33. 

c  Irwin  v.  Globe  Indemnity  Co.  of  N.  Y.,  1  Cal.  I.  A,  C.  Dec.  547. 
HON.COMP. — il 


§  169  workmen's  compensation  642 

whatever,  when,  as  a  matter  of  fact,  a  substantial  contribution  to 
the  support  of  the  family  was  made  by  the  deceased.* 

§  169.     Minnesota 

The  purpose  of  the  compensatory  provision  of  the  Minnesota 
Act  is  to  secure  the  widow,  or  dependent  next  of  kin,  of  an  employe 
who  should  meet  an  accidental  death  while  engaged  in  the  line  of 
his  employment,  a  percentage  income  based  upon  their  pecuniary 
loss,  and  the  salary  or  compensation  actually  received  by  the  em- 
ploye at  the  time  of  his  death  represents  such  loss.''  Under  the  pro- 
vision that  partial  dependents  are  entitled  to  "that  proportion  of  the 
benefits  provided  for  actual  dependents  which  the  average  amount 
of  the  wages  regularly  contributed  by  the  deceased  *  *  *  ^ore 
to  the  total  income  of  the  dependent"  the  monthly  contributions  of 
a  workman  to  his  mother  should  be  considered  as  a  part  of  her  "total 
income,"  in  determining  the  amount  she  is  entitled  to  recover  as  a 
partial  dependent.^  A  partially  dependent  sister  of  a  deceased 
workman  is  entitled  to  the  minimum  ®  weekly  payment  of  $6  for 
300  weeks, ^°  regardless  of  whether  she  inherited  anything  from 
the  estate  of  the  employe.^^ 

§  170.     New  Jersey 

Where  the  decedent  leaves  no  widow,  but  leaves  a  mother  or 
father  actually  dependent  upon  him,  compensation  should  be  com- 

6  MattWesen  v.  Pacific  Gas  &  Electric  Co.,  1  Cal.  I.  A.  C.  Dec.  398. 

7  (Laws  1913,  c.  467,  §§  8-34 ;  Gen.  St.  1913,  §§  8202^8230)  State  ex  rel. 
Gaylord  Farmers'  Co-op.  Creamery  Ass'n  v.  District  Court,  128  Minn.  486, 
151  N.  W.  182. 

8  (Gen.  St.  1913,  §  8211,  as  amended  by  Laws  1915,  c.  209)  State  ex  rel. 
Hayden  v.  District  Court  (Minn.)  158  N.  W.  792. 

9  (Laws  1913,  c.  467,  §  14,  subds.  13,  15,  17 ;  Gen.  St.  1913,  §  8208).  State 
ex  rel.  Globe  Indemnity  Co.  v.  District  Court  (Minn.)  156  N.  W.  120. 

10  (Gen.  St.  1913,  §  8208)  State  ex  rel.  Crookston  Lumber  Co.  v.  District 
Court,  131  Minn.  27,  154  N.  W.  509. 

11  Id.     See  I  78,  ante. 


643  COMPENSATION  §   171 

puted  on  the  basis  of  25  per  cent,  of  his  wages  for  the  number  of 
weeks  fixed  by  statute,  with  due  regard  to  the  maximum  and  mini- 
mum amounts  also  fixed  by  the  statute/^ 

§  171.    New  York 

Under  an  express  provision  of  the  New  York  Act,  the  probable 
increase  in  a  minor  employe's  wages  may  be  considered,  notwith- 
standing a  provision  that  "all  questions  of  dependency  shall  be  de- 
termined as  of  the  time  of  the  accident."  ^^  This  Act  places  no  lim- 
it on  the  number  of  payments  that  may  be  awarded  to  the  depend- 
ents." A  provision  "for  the  support  of  grandchildren  or  brothers 
and  sisters  under  the  age  of  18  if  dependent  upon  the  deceased  at 
the  time  of  the  accident,  15  per  cent,  of  such  wages  for  the  support 
of  each  person  until  the  age  of  18  years;  and  for  the  support  of 
each  parent  or  grandparent  of  the  deceased  if  dependent  upon  him 
at  the  time  of  the  accident,  15  per  cent,  of  such  wages  during  such 
dependency,"  contemplates  a  separate  award  for  each  dependent, 
and  hence  the  award  of  one  dependent  is  not  merged  in  the  award 
of  another  legally  chargeable  with  her  support.^^ 

12  (P.  L.  1911,  p.  139,  §  2,  par.  12)  Reardon  v.  Phila.  &  R.  Ry.  Co.,  85  N. 
J.  Law,  90,  88  Atl.  970 ;  Quinlan  v.  Barber  Asphalt  Paving  Co.,  84  N.  J.  Law, 
510,  87  Atl.  127 ;  McFarland  v.  Central  R.  Co.  of  N.  J.,  84  N.  J.  Law,  435,  87 
Atl.  144,  47  L.  R.  A.  (N.  S.)  279,  Ann.  Cas.  1915A,  1 ;  Tischman  v.  Central  R. 
Co.  of  N.  J.,  84  N.  J.  Law,  527,  87  Atl.  144. 

Compensation  at  the  rate  of  25  per  cent,  of  the  average  weekly  wages  may 
be  awarded  to  a  father,  who  is  an  actual  dependent  upon  a  deceased  son; 
the  son,  a  minor,  leaving  a  father  and  mother,  five  minor  brothers,  and  four 
sisters  surviving.    Havey  v.  Erie  R.  Co.,  88  N.  J.  Law,  684,  96  Atl.  995. 

13  (Wk.  Comp.  Act,  §§  14,  16)  Kilberg  v.  Vitch,  171  App.  Div.  89,  156  N.  Y. 
Supp.  971. 

In  awarding  compensation  to  a  dependent  mother  and  sister  of  a  deceased 
employe  16  years  old,  the  Commission  properly  considered  the  probable  in- 
crease of  the  employe's  wages,    (Wk.  Comp.  Act,  Consol.  Laws,  c.  67,  §  14).    Id. 

14  (Wk.  Comp.  Act,  §  16,  subd.  4)  Walz  v.  Holbrook,  Cabot  &  Rollins  Corp., 
170  App.  Div.  6,  155  N.  Y.  Supp.  702. 

15  Id. 


§  172  workmen's  compensation  644 

§  172.     Washington 

The  rule  existing  at  the  time  of  the  passage  of  the  Washington 
Act  was. that  parents  of  a  minor  workman  were  not  entitled  to  dam- 
ages for  his  death,  even  though  actually  dependent,  their  recovery 
being  limited  to  the  loss  of  his  services  during  minority.  The  com- 
pensation provided  for  by  subdivision  3  of  section  5  of  the  Act  is 
therefore  the  exclusive  compensation  to  be  allowed  for  the  death  of 
an  unmarried  minor  workman. ^^  A  widow  is  not  entitled  to  ad- 
ditional compensation  on  account  of  the  adoption  of  a  child  sub- 
sequent to  the  death  of  her  husband. ^^  A  19  year  old  employe's  de- 
pendent mother  is  entitled  to  compensation  while  her  dependent 
condition  continues,  not  merely  until  decedent  would  have  been 
21  years  old.^® 

§  173.     Wisconsin 

The  Wisconsin  Act  provides  that,  in  case  of  permanent  disability 
of  an  employe  who  is  over  55  years  of  age,  the  specified  compensa- 
tion shall  be  reduced  by  5  per  cent. ;  in  case  he  is  over  60  years  of 
age,  by  10  per  cent.;  and  in  case  he  is  over  65  years  of  age,  by  15 
per  cent.  In  preceding  subdivisions  it  is  provided  that  in  case  of 
death  of  the  employe  a  sum  equal  to  the  compensation  specified  for 
a  permanent  injury  or  disability  shall  be  paid  as  a  penalty  to  the 
surviving  dependents.  The  term  "permanent  injury,"  as  thus  used, 
has  its  ordinary  meaning,  and  cannot  be  extended  to  include  injuries 
resulting  in  death,  and  hence  in  case  of  death  there  can  be  no  re- 
duction for  the  advanced  age  of  the  employe.^^ 

16  (Wk.  Comp.  Act  Wash.  §  5,  subd.  3)  OpiBion  Atty.  Gen.,  Jan.  9,  1912. 

17  (Wk.  Comp.  Act  Wash.  §  5)  Eulings  Wash.  Indus.  Ins.  Com.  1915,  p.  16. 

18  (Sess.  Laws  1911,  c.  74,  §  5,  subd.  3)  Boyd  v.  Pratt,  72  Wash.  306,  130  Pac. 
371. 

19  (St.  1913,  §  2394—9,  subd.  5)  City  of  Milwaukee  v.  Ritzow,  158  Wis.  376, 
149  N.  W.  480.  While  the  point  raised  is  not  entirely  free  from  difficulty, 
it  is  considered  that  the  terms  "injury,"  "permanent  injury,"  "disability," 
"permanent  disability,"  and  "permanently  totally  disabled"  are  descriptive  of 


645  COMPENSATION  §  174 

Under  this  Act,  where  the  deceased  employe  leaves  no  one 
wholly  dependent  upon  him  for  support,  but  one  or  more  persons 
partially  dependent,  the  death  benefit  should  be  such  percentage 
of  four  times  the  average  annual  earnings  of  the  deceased  employe 
as  the  average  amount  devoted  by  him  to  the  support  of  the  per- 
son so  partially  dependent  bears  to  such  average  annual  earnings.^'' 
"The  amount  devoted  by  the  deceased  *  *  *  to  the  support  of 
partial  dependents"  means,  in  the  case  of  dependent  parents,  the 
amount  received  for  themselves  and  for  the  support  of  minor  chil- 
dren, including  the  deceased.  In  short,  it  is  the  amount  contribut- 
ed to  the  support  of  the  family.^^  The  "support"  of  a  dependent 
means  the  shelter,  food,  clothes,  etc.,  required  to  meet  his  daily 
necessities,  and  compensation  is  to  be  determined  by  the  amount 
devoted  by  the  employe  to  those  purposes  during  the  year  preced- 
ing his  death.^^ 

§  174.     Federal  Act 

The  amount  of  compensation  payable  to  a  dependent  parent  un- 
der the  original  federal  Act  is  equivalent  to  the  full  pay  of  the  de- 
ceased for  the  balance  of  the  year  following  the  latter's  death, 
though  the  parent  had  not  been  wholly  dependent  upon  him,  or  had 
received,  before  the  injury,  only  a  share  of  his  wages.^^ 

a  class  of  events  creating  a  right  to  compensation  to  the  injured  one,  and 
that  the  injury  resulting  proximately  or  otherwise,  or  followed  by  death, 
covered  by  subdivisions  3  and  4,  constitute  a  separate  and  distinct  class  of 
events,  where  the  compensation  goes  to  the  dependents,  and  that  it  is  to 
the  former  only  that  the  words  "the  compensation  herein  shall  be  reduced," 
etc.,  applies.    Id. 

20  Dougherty  v.  State  of  Wisconsin,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  99. 

21  Damrau  v.  Kuetemeyer,  Eep.  Wis.  Indus.  Com.  1914-15,  p.  19. 

22  Dougherty  v.  State  of  Wisconsin,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  99. 
28  In  re  Noriega,  Op.  Sol.  Dept.  of  L.  378. 


§  175  workmen's  compensation  646 

ARTICLE  IV 

PAYMENT,    RELEASE,    AND    IlELATED    MATTERS 

Section 

175.     Time,   commencement,   and  contiuuation  of  payments. 
17G.  Original  federal  Act. 

177.  Waiting  period. 

178.  Original  federal  Act. 

179.  Lump  sum  payments. 
ISO.  Amount. 

181.  Deductions  from  award  or  settlement. 

182.  Deduction  of  payments  made. 

183.  Deduction  for  interest. 

184.  Increased  and  reduced  compensation. 

185.  Restriction  of  employee's  rights  in  insurance  contract. 

186.  Pensions. 

187.  Change,  suspension,  and  termination  of  compensation. 

188.  California. 

189.  Release. 

190.  Contracting  out. 

191.  Assignment  of  compensation  rights. 

192.  Apportionment. 

§  175.     Time,  commencement,  and  continuation  of  payments 

Where  disabilities  are  temporary,  or  where  they  are  total  and 
permanent,  the  New  Jersey  Act  directs  that  compensation  be  paid 
for  the  period  of  disability.  Where  the  disability  is  partial,  but  per- 
manent, the  statute  omits  that  direction,  because  in  many  cases  the 
amount  cannot  be  ascertained,  except  by  judgment  of  the  court, 
and  there  is  no  statutory  authority  for  giving  that  judgment  a 
retroactive  effect.^*  Where  an  award  of  compensation  for  200 
weeks  is  made,  and  later  it  is  determined  that  the  disability  is  to- 
tal and  permanent,  and  an  additional  award  of  compensation  for  200 
weeks  is  made,  to  make  the  400  weeks  authorized  by  this  Act,  the 

2*  (P.  L.  1911,  p.  137,  §  2,  par.  11,  subds.  a,  b,  c)  Banister  Co.  v.  Kriger  (N. 
J.  Sup.)  89  Atl.  923,  denying  rehearing  in  the  case  reported  in  84  N.  J.  Law, 
SO,  85  Atl.  1027. 


647  COMPENSATION  §    176 

second  200  payments  should  not  begin  until  the  expiration  of  the 
first  200  payments. ^^  Two  awards,  one  under  the  schedule  and 
one  not,  ordinarily  run  consecutively  and  not  concurrently.^® 

There  is  no  provision  in  the  Iowa  Act  which  permits  employers 
to  make  payments  otherwise  than  weekly,  unless  an  arrangement 
is  made  for  the  payment  in  a  lump  sum.^^ 

§  176.     Original  federal  Act 

The  year  for  which  compensation  is  payable  begins  to  run  on  the 
day  following  the  date  of  the  injury  and  terminates  with  the  anni- 
versary of  the  day  of  injury.^^  The  date  of  the  injury  is  the  date 
on  which  the  injury  results  in  incapacity  for  work,^**  So  long  as  the 
injury  continues  the  employe  is  entitled  to  his  status  at  the  time  of 
the  injury,  and  must  be  paid  compensation  as  if  he  continued  to  be 
employed,^'*  even  though  the  work  on  which  he  was  employed  has 
been  stopped  or  suspended  before  he  is  able  to  resume  work;  ^^  but 
he  is  entitled  to  compensation  no  longer  than  his  incapacity  is  due 

25  Diskon  v.  Bu'Db,  88  N.  J.  Law,  513,  96  Atl.  660. 

26  In  Swanson  v.  Sargent  &  Co.,  1  Conn.  Comp.  Dec.  433,  it  was  held  that  com- 
pensation for  the  loss  of  an  eye  under  the  schedule  and  compensation  for  in- 
capacity due  to  injury  to  the  other  does  not  run  concurrently,  but  consecu- 
tively. In  Kaiser  v.  Pinney,  1  Conn.  Comp.  Dec.  562,  where  the  claimant  was 
found  entitled  to  compensation  under  the  schedule  for  loss  of  hearing,  and 
also  for  total  incapacity,  as  a  result  of  being  struck  on  the  head  by  a  piece 
of  timber,  causing  Meniere's  disease,  it  was  held  that  the  double  compensation 
should  run  consecutively,  and  not  concurrently. 

As  to  separate  awards  under  the  schedule,  see  §  165,  ante. 

2  7  (Code  Supp.  1913,  §  2477ml4)  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915) 
p.  34. 

28  In  re  Kelly,  Op.  Sol.  Dept.  of  L.  337.  The  compensation  year  begins  to 
rim  from  the  exact  time  when  the  wage  earnings  cease.  In  re  Robinson,  Op. 
Sol.  Dept.  of  L.  386. 

2  9  In  re  Bowen,  Op.  Sol.  Dept.  of  L,  340. 

30  In  re  Hufe  (Dec.  Comp,  of  Treas.)  Op.  Sol.  Dept.  of  L.  568 ;  (Dec.  Comp. 
of  Treas.)  Op.  Sol.  Dept.  of  L.  786. 

31  In  re  McCrae,  Op.  Sol.  Dept.  of  L.  375. 


I 


§  176  workmen's  compensation  648 

to  his  original  injury,  and  may  not  be  paid  because,  on  account  of 
old  age  or  other  bodily  infirmity,  he  is  unable  to  resume  work  with- 
in the  year.^^  The  payment  of  compensation  provided  for  contem- 
plates a  continuing  liability,  and  even  in  case  of  death  that  the 
payments  will  be  made  as  they  would  have  accrued. ^^  Where  the 
period  of  incapacity  covers  more  than  one  fiscal  year,  payment 
should  only  be  made  for  the  time  of  incapacity  during  each  fiscal 
year  from  the  appropriation  for  that  year.  A  temporary  employe, 
who  is  injured  and  whose  incapacity  continues  beyond  his  term  of 
appointment,  is  entitled  to  pay  during  incapacity,  regardless  of  the 
termination  of  the  employment.^*  Ability  to  resume  the  regular 
work  of  the  injured  person's  employment  appearing,  compensation 
ceases  under  the  Act,  though  the  employe  remains  seriously  and 
permanently  injured.^*^  Ability  to  resume  work  means  inability  to 
resume  the  regular  work  of  the  injured  person's  employment  in  the 

32  In  re  Blackhurst,  Op.  Sol.  Dopt.  of  L.  COO.  To  entitle  an  employ^  to  con- 
tinued compensation,  the  disability  must  be  due  in  an  appreciable  measure 
to  the  original  injury.    In  re  McAllister,  Op.  Sol.  Dept.  of  L.  6S0. 

A  workman  was  struck  in  the  eye  by  a  piece  of  steel,  causing  the  loss  of 
the  eye.  The  injury,  while  permanent,  was  stated  by  the  United  States  hos- 
pital service  physician  to  have  no  bearing  on  the  physical  condition.  He 
was  held  entitled  to  compensation  only  for  the  time  he  was  physically  in- 
capacitated by  the  injury.  In  re  Holden,  Op.  Sol.  Dept.  of  L.  2GS.  In  this 
case  the  superior  officer  of  the  claimant  recommended  that  he  be  paid  only 
for  a  certain  number  of  days,  but  gave  no  satisfactory  reason  for  his  recom- 
mendation. As  the  medical  evidence  appeared  to  substantiate  the  conten- 
tion of  the  claimant,  it  was  decided  that  a  claim  was  established.  In  re 
Smith,  Op.  Sol.  Dept.  of  L.  745.  The  hospital  surgeon  reported  that  the  in- 
jury should  not  have  caused  incapacity  for  more  than  15  days,  while  the  at- 
tending physician  certified  to  incapacity  for  a  longer  period.  In  view  of  all 
the  circumstances,  the  claim  was  allowed.  In  re  Williamson,  Op.  Sol.  Dept. 
of  L.  750. 

33  In  re  Huff  (Dec.  Comp.  of  Treas.)  Op.  Sol.  Dept.  of  L.  568. 

3  4  (Dec.  Comp.  of  Treas.)  Op.  Sol.  Dept.  of  L.  794.  Where  the  period  of  in- 
capacity covers  more  than  one  fiscal  year  payment  should  only  be  made  for 
the  time  of  incapacity,  regardless  of  the  termination  of  the  employment. 
(Dec.  Comp.  of  Treas.)  Op.  Sol.  Dept.  of  L.  795. 

SB  In  re  Carroll,  Op.  Sol.  Dept.  of  L.  367. 


m 


649  COMPENSATION  §   176 

course  of  which  the  injury  was  sustained,  not  any  work  he  may  be 
able  to  do  notwithstanding  the  injury.^^  Hence,  inability  to  resume 
regular  work  of  the  employment  appearing,  compensation  is  pay- 
able, though  the  claimant  is  discharged  and  obtains  other  employ- 
ment of  a  different  character.^^  However,  where  an  injured  em- 
ploye, though  unable  to  return  to  his  regular  work,  returns  to  work 
of  a  different  character,  and  receives  the  same  pay  as  if  his  duties 
remained  unchanged,  compensation  under  the  Act  ceases;  his  right 
to  compensation  is  merged  in  his  right  to  receive  pay  for  his  serv- 
ices.^* Ability  to  resume  work  at  a  given  date  cannot  be  predicated 
on  the  fact  that  an  injured  person  refused  to  submit  to  an  opera- 
tion, and  therefore,  according  to  medical  opinion,  delayed  recov- 
ery.3  9  When  delay  in  returning  to  work  is  not  chargeable  to  the 
claimant,  but  to  some  rule  or  regulation  of  the  establishment  where 
he  is  employed,  loss  of  time  occasioned  thereby  is  an  incident  of 
the  injury,  and  the  claimant  is  entitled  to  pay  therefor.'*"  The  time 
consumed  by  an  injured  workman  in  returning  from  the  place  where 
he  was  treated  for  the  injury  may  be  considered  a  part  of  the  inca- 
pacity period,  where  it  was  necessary  to  go  to  such  place  for  treat- 
ment because  of  the  lack  of  facilities  at  a  nearer  point.*^  The 
compensation  period  includes  all  regular  working  days,  exclusive 
of  Sundays  and  legal  holidays.*^ 

3  6  In  re  Query  of  Naval  Constructor  of  Boston  Navy  Yard,  Op.  Sol.  Dept.  of 
L.  345. 

Claimant  was  advised  by  the  government  physician  vpho  treated  the  injury 
to  perform  light  work  in  the  way  of  exercise,  but  this  did  not  disentitle  him 
to  compensation,  which  was  payable  until  he  was  able  to  resume  his  regular 
duties.     In  re  Richerson,  Op.  Sol,  Dept.  of  L.  775. 

3  7  In  re  Hill,  Op.  Sol.  Dept.  of  L.  369. 

3  8  In  re  Manaloc,  Op.  Sol.  Dept.  of  L.  383. 

3  9  In  re  Passus,  Op.  Sol.  Dept.  of  L.  371. 

40  In  re  Winn,  Op.  Sol.  Dept.  of  L.  389. 

41  In  re  Cernich,  Op.  Sol.  Dept.  of  L.  539;  In  re  Bailey,  Op.  Sol.  Dept.  of 
L.  297. 

42  In  re  Weissenborn,  Op.  Sol.  Dept.  of  D.  388. 


§  177  workmen's  compensation  650 

§  177.     Waiting  period 

As  a  rule,  compensation  is  not  payable  unless  the  resulting  dis- 
ability lasts  longer  than  two  weeks, *^  or  ten  days.**  The  provision 
of  the  New  Jersey  Act  that  "no  compensation  shall  be  allowed  for 
the  first  two  weeks  after  injury  received,  except  as  provided  by 
paragraph  14,  nor  in  any  case  unless  the  employer  has  actual  knowl- 
edge of  the  injury  or  is  notified  thereof  within  the  period  specified 
in  paragraph  15,"  does  not  reduce  the  compensation  for  loss  of  a 
phalange  from  an  allowance  for  35  weeks  to  an  allowance  for  33 
weeks.  It  is  probable  that  the  intent  of  this  section  was  to  ex- 
clude allowance  of  compensation  in  the  case  of  a  temporary  dis- 
ability lasting  less  than  two  weeks,  except  for  medical  and  hos- 
pital services  and  medicines.*^  This  section  must  be  read  in  connec- 
tion with  the  section  relating  to  the  furnishing  of  medical  attention 
and  medicine,  and  be  confined  to  cases  where  death  does  not  oc- 
cur. Where  the  workman  is  killed  instantly,  the  provision  for  hold- 
ing up  the  compensation  for  two  weeks  does  not  apply.*®  Under 
the  California  Act,  where  an  injured  employe  returns  to  work  with- 
in two  weeks  after  an  accident  at  the  same  wages  that  he  was  re- 
ceiving before  his  injury,  no  temporary  total  or  partial  disability 
compensation  can  be  awarded,  even  though  he  has  not  entirely 
recovered.  Compensation  is  awarded  only  for  loss  of  earnings  due 
to  accidental  injury,  and  not  for  pain  and  suffering  unaccompanied 

4  3  Armiger  v.  Townsend-Davis  Baking  Co.,  1  Cal.  I.  A.  C.  Dec.  55;  Tur- 
geon  V.  Fox  Co.,  1  Cal.  I.  A.  C.  Dec.  68 ;  Lough  v.  Standard  Oil  Co.,  1  Cal.  I. 
A.  C.  Dec.  41;  Kagaroff  v.  Southern  California  Gas  Co.,  1  Cal.  I.  A.  C. 
Dec.  43. 

4*  In  Swanson  v.  Sargent  &  Co.,  1  Conn.  Comp.  Dec.  433,  it  was  held  that  the 
loss  of  a  member  compensable  under  the  schedule  is  a  presumed  incapacity, 
and  that  the  waiting  period  applies  to  such  injuries,  undei*  a  provision  that, 
if  incapacity  extends  beyond  a  period  of  ten  days,  compensation  shall  begin 
on  the  eleventh  day.  (Wk.  Conip.  Act,  pt.  B,  §  8,  as  amended  by  Laws  1915, 
c.  288,  §  4.) 

45  James  A.  Banister  Co.  v.  Kriger,  84  N.  J.  Law,  30,  85  Atl.  1027. 

46  Conners  v.  Public  Service  Electric  Co.  (N.  J.  Sup.  1916)  97  Atl.  792. 


651  COMPENSATION  §    178 

by  loss  of  earnings  beyond  the  two  weeks'  waiting-  period.*'^  But 
where  an  employer  elects  to  pay  compensation  for  any  portion  of 
the  period  of  disability,  without  deducting  for  the  waiting  period 
of  the  first  fifteen  days,  the  injured  employe  will  not  be  forced  to 
refund  the  indemnity  paid  for  such  waiting  period,  nor  will  the 
employer  be  credited  therewith  on  the  award.*^ 

178.  Original  federal  Act 

Although  the  nature  of  the  injury  and  the  physician's  certifi- 
cate indicate  clearly  that  the  incapacity  will  continue  more  than 
fifteen  days,  the  Secretary  is  not  justified  in  approving  a  claim 
which  fails  to  show  affirmatively  that  incapacity  continued  for 
more  than  that  period.*''  When  the  days  of  incapacity,  whether 
consecutive  or  in  broken  periods,  amount  to  more  than  fifteen, 
counting  intervening  Sundays  and  holidays,  the  law  entitles  the 
employe  to  compensation.^'*  The  day  on  which  the  injury  occur- 
red should  be  included  in  determining  whether  duration  of  inca- 
pacity existed  for  more  than  fifteen  days.^^  An  employe  who  is  so 
injured  that  he  can  never  resume  the  work  on  which  he  was  en- 
gaged at  the  time  of  the  injury,  but  who,  after  fourteen  days  of 
incapacity,  is  able  to  resume  work  by  accepting  an  assignment  to 
a  character  of  work  with  which  his  injury  does  not  materially  in- 
terfere, and  who  does  so  resume  work,  may  receive  compensation 
for  the  time  lost,  even  though  it  may  not  amount  to  more  than 
fifteen  days.^^     Where  there  is  a  conflict  of  opinion  between  the 

47  Ely  V.  Maryland  Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  335. 

48  Turner  v.  City  of  Santa  Cruz,  2  Cal.  I.  A.  C.  Dec.  991. 

49  In  re  Dray,  Op.  Sol.  Dept.  of  L.  540. 
5  0  In  re  Wells,  Op.  Sol.  Dept.  of  L.  515. 

51  In  re  Taylor,  Op.  Sol.  Dept.  of  L.  542.  An  injury  continues  for  "more 
than"  fifteen  days  if  the  period  of  disability  lasts  for  fifteen  full  days  in 
addition  to  the  day  of  injury ;  the  day  of  injury  cannot  be  disregarded  with- 
out extending  the  period  limited  to  sixteen  days.  In  re  Fogg,  Op.  Sol.  Dept. 
of  L.  509. 

62  In  re  Davis,  Op.  Sol.  Dept.  of  L.  516. 


§  179  workmen's  compensation  652 

government  surgeon  and  the  attending  physician  as  to  the  ability  of 
the  claimant  to  return  to  work,  and  the  record  sustains  the  views 
of  the  attending  physician,  the  claimant  cannot  be  forced  to  lose  his 
right  to  compensation  by  being  compelled  by  decision  of  the  gov- 
ernment surgeon  to  resume  his  work  before  the  fifteen-day  period 
expires."  An  employe  who  is  physically  able  to  resume  work  with- 
in fifteen  days  after  the  injury,  but  who  is  prevented  from  actually 
resuming  work  until  eighteen  days  thereafter  because  of  holidays 
or  lack  of  work,  is  not  entitled  to  compensation.'*  Any  doubt  as  to 
whether  the  injury  continued  more  than  fifteen  days  should  be  re- 
solved in  the  claimant's  favor.^"* 

§  179.     Lump  sum  payments 

From  an  investigation  of  the  Workmen's  Compensation  Acts  in 
the  various  countries  and  states,  it  appears  that  almost  without  ex- 
ception provision  is  made  for  commutation  of  payments  to  a  lump 
sum.  In  some  jurisdictions  the  lump  sum  payment  may  be  made  by 
agreement,  but  in  the  majority  the  question  whether  it  shall  be 
permitted  is  left  to  the  determination  of  an  administrative  board  or 
to  the  judgment  of  a  court.  In  some  states  it  can  be  made  by  the 
tribunal  on  the  application  of  either  party;    in  some  the  matter  is 

53  In  re  Tyrrell,  Op.  Sol.  Dept.  of  L.  546. 

54  In  re  Avery,  Op.  Sol.  Dept.  of  L.  517. 

5  5  The  government  physician  certified  that  he  had  treated  an  injury  daily 
for  a  period  of  more  than  fifteen  days,  but  that  the  injury  received  did  not 
show  suflicient  external  evidence  of  violence  to  lead  to  the  belief  that  it  would 
cause  incapacity  for  more  than  fifteen  days.  As  claimant  made  affidavit  that 
he  was  unable  to  resume  work  for  the  same  period  that  the  government 
physician  treated  the  injury,  it  was  held  that  the  preponderance  of  the  evi- 
dence established  a  claim  for  compensation.  In  re  Smith,  Op.  Sol.  Dept.  of  L. 
541.  When  claimant's  actual  incapacity,  due  to  the  injury  from  shock  re- 
ceived at  the  time  of  the  accident  and  developing  later,  continued  beyond  the 
period  of  disability  (less  than  fifteen  days)  covered  by  a  report  of  the  yard 
surgeon,  and  about  which  condition  there  was  a  difference  of  opinion  between 
the  yard  surgeon  and  the  attending  physician,  the  doubt  should  be  determined 
in  the  claimant's  favor.    In  re  Coleman,  Op.  Sol.  Dept.  of  L.  544. 


653  COMPEl^SATION  §   179 

within  the  discretion  of  the  court  or  Commission,  with  or  without 
the  consent  of  either  party;  in  some  states  six  months  must  ex- 
pire before  the  agreement  or  the  application  to  the  court  may  be 
made.  The  manner  in  which  the  lump  sum  is  to  be  arrived  at  or 
must  be  computed  is  also  fixed  in  some  states,  while  in  others  it  is 
left  to  agreement,  subject  to  approval  by  the  court.  The  theory  of 
legislation  authorizing  commutation  of  payments  to  a  lump  sum 
is  that  cases  will  arise  in  which  the  employe's  condition  will  be  so 
marked  that  there  will  be  little  reason  to  anticipate  improvement 
in  earning  capacity,  and  that  the  circumstances  will  warrant  al- 
lowing a  lump  sum  available  at  once,  rather  than  periodical  pay- 
ments.^* 

A  discretion  vested  in  the  court  relative  to  the  method  of  pay- 
ment must  be  exercised  in  conformity  with  the  spirit  of  the  law 
and  so  as  to  best  promote  the  ends  of  justice.  One  method  must 
not  be  chosen  in  preference  to  another  arbitrarily,  or  merely  to 
suit  the  convenience  or  lessen  the  labors  of  the  judge,  but  he 
should  consider  the  circumstances,  and  apply  that  method  which 
will  most  effectually  promote  the  welfare  of  the  parties."  When 
he  exercises  his  judgment  and  discretion  as  to  the  best  method  of 
making  compensation  in  the  light  of  all  the  facts,  the  result  will 
not  be  disturbed  on  appeal,  except  for  an  abuse  of  the  discretion. ^^ 

56  Roberts  v.  Packing  Co.,  95  Kan.  723,  149  Pac.  413;  McCracken  v.  Missouri 
Valley  Bridge  &  Iron  Co.,  96  Kan.  353,  150  Pac.  832;  Gorrell  v.  Battelle,  93 
Kan.  370,  144  Pac.  244. 

5  7  Ackerson  v.  National  Zinc  Co.,  96  Kan.  781,  153  Pac.  530. 

58  Gorrell  v.  Battelle,  93  Kan.  370,  144  Pac.  244;  Ackerson  v.  National  Zinc 
Co.,  supra. 

An  award  of  compensation  in  a  lump  sum  will  not  be  disturbed,  in  the 
ubsence  of  abuse  of  discretion.  Halverhout  v.  S.  W.  Milling  Co.,  97  Kan.  484, 
155  Pac.  916;  Gorrell  v.  Battelle,  supra;  Cain  v.  Ziuc  Co..  94  Kan.  679,  146 
Pac.  1165,  148  Pac.  251 ;  Roberts  v.  Packing  Co.,  95  Kan.  728,  149  Pac.  413 ; 
McCracken  v.  Bridge  Co.,  96  Kan.  353.  150  Pac.  832. 

An  award  of  compensation  in  a  lump  sum  for  partial  disability  for  a  maxi- 
mum period  allowed  by  the  statute  will  not  be  disturbed,  where  it  appears 
authorized  by  the  facts.    Gorrell  v.  Battele,  supra. 


§  179  workmen's  compensation  654 

A  statement  by  the  court  in  a  Kansas  case,  in  response  to  a  sug- 
gestion that  as  long  as  the  employer  was  not  in  default  no  action 
to  recover  could  be  brought,  that  "that  theory  would  shut  a  man 
out  from  his  right  to  recover  a  lump  sum  and  would  not  give  him 
any  discretion,"  did  not  show  that  the  court  failed  to  exercise  its 
discretion  in  the  matter  of  periodical  payment  or  lump  sum  judg- 
ment.^® 

Commutation,  being  a  departure  from  the  normal  method  of 
payment,  is  to  be  allowed  only  when  it  clearly  appears  that  the  con- 
dition  of   the  beneficiaries   warrants   such    departure,^"  but  there 

5  8  Girten  v.  National  Zinc  Co.  (Kan.)  158  Pac.  33. 

60  Bailey  v.  U.  S.  Fidelity  &  Guaranty  Co.,  99  Neb.  109,  155  N.  W.  237.  The 
law  should  be  administered  with  due  regard  to  the  preservation  of  the  means 
of  support,  and  in  ordinary  cases  the  normal  method  should  not  be  departed 
from.  Id.  The  power  of  the  insurance  department  to  commute  payments  to 
a  lump  sum  will,  as  a  matter  of  policy,  be  seldom  exercised,  as  in  practically 
all  cases  it  is  obviously  better  for  the  beneficiaries  to  receive  the  sum  to  which 
they  are  entitled  in  installments  at  stated  intervals,  rather  than  in  a  lump 
sum.  (Wk.  Comp.  Act  Wash.  §  7)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  18. 
The  Commission  will  not  require  a  defendant  against  its  objections  to  pay 
compensation  in  a  lump  sum,  except  in  cases  of  exceptional  urgency.  Wilson 
V.  Gallegher,  1  Cal.  I.  A.  C.  Dec.  306.  Lump  sum  settlements  are  not  favored 
by  the  Commission,  and  will  not  be  granted,  except  where  necessary  for  the 
protection  of  the  rights  of  the  applicant,  or  unless  extreme  need  be  shown  by 
him.  One  of  the  principal  purjjoses  of  the  Act  is  to  prevent  injured  persons 
from  becoming  public  charges,  and  it  is  for  this  reason  that  the  Commission 
permits  lump  sum  settlements  only  in  relatively  rare  instances,  and  never  if 
such  lump  sum  settlement  seems  likely  to  be  followed  by  an  individual  becom- 
ing a  charge  upon  the  state  or  any  political  subdivision  of  it.  Bedini  v.  North- 
western Pacific  R.  R.  Co.,  1  Cal.  I.  A.  C.  Dec.  312. 

Commutation  denied.  In  Morgillo  (alias  Morgean)  v.  Westinghouse,  Church, 
Kerr  &  Co.,  1  Conn.  Comp.  Dec.  311,  where  claimant  applied  for  a  commuta- 
tion to  a  lump  sum  in  order  to  allow  him  to  return  to  his  home  in  Italy,  but 
it  appeared  that  his  thigh,  which  was  broken  by  the  accident,  had  formed  a 
vicious  union,  causing  pain  and  awkwardness,  amounting  to  a  deformity,  which 
would  be  greatly  decreased  by  an  operation,  and  the  employer  was  willing  to 
provide  such  an  operation  free  of  charge,  by  a  competent  surgeon,  it  was  held 
to  be  for  the  best  interest  of  the  parties  that  commutation  be  denied ;  and  on 
rehearing  in  this  case,  where  the  operation  was  considered  advisable  on 
account  of  the  vicious  union,  because  under  any  stress  it  would  be  liable  to 


655  COMPENSATION  §   179 

should  be  no  hesitancy  in  permitting  such  departure  where  the  best 
interests  of  the  parties  demand  it.^^  Where  the  employer  is  will- 
break  again,  after  which  the  proposed  operation  would  be  no  longer  possible, 
and  it  being  improbable  that  if  claimant  returned  to  Italy  (for  which  purpose 
he  desired  the  commutation)  he  would  be  able  to  secure  expert  surgical  treat- 
ment on  account  of  the  extraordinary  demands  made  upon  surgeons  of  that 
country  by  the  war,  commutation  was  again  denied.  In  Fabbian  v.  C.  W. 
Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  305,  where  it  was  shown  that  only 
part  of  the  compensation  being  paid  periodically  was  needed  for  the  support 
of  the  dependent  minor  son,  but  that  if  commutation  were  allowed  a  certain 
profit  would  be  made  on  the  rate  of  exchange  in  transmitting  the  money  to 
Italy,  where  the  dependent  lived,  the  commissioner  held  such  was  not  sufficient 
reason  to  justify  commutation.  In  Cushner  v.  H.  O.  Rowe  &  Co.,  1  Conn. 
Comp.  Dec.  574,  it  was  held  commutation  into  a  lump  sum  was  neither  just 
nor  necessary,  the  only  reason  to  justify  a  commutation  being  the  necessity  for 
an  expensive  operation,  and  it  appearing  that  the  claimant  had  sufficient 
funds  in  the  bank  to  meet  the  expense  of  such  operation. 

61  Because  the  court  exercises  discretionary  power  in  a  matter  peculiarly 
for  its  consideration,  its  action  is  practically  final.  Consequently  it  is  to  be 
expected  that  district  courts  will  act  cautiously  and  candidly,  and  not  render 
lump  sum  judgments  for  any  other  reason  than  that  the  welfare  of  the  parties 
requires  it.  Whenever  such  a  judgment  appears  to  be  best  under  all  the  cir- 
cumstances, there  should  be  no  hesitation  in  pronouncing  it.  McCracken  v. 
Missouri  Valley  Bridge  &  Iron  Co.,  96  Kan.  353,  150  Pac.  832. 

Commutation  granted.  In  Clarke  v.  Bigelow-Hartford  Carpet  Co.,  1  Conn. 
Comp.  Dec.  166,  where  the  decedent  left  a  widow  and  several  dependent  chil- 
dren, the  death  benefit  was  commuted  to  a  lump  sum  in  order  that  it  might 
be  applied  on  a  mortgage  on  the  home  where  the  family  lived.  In  Connecti- 
cut commutation  is  wholly  in  the  discretion  of  the  commissioner,  regardless  of 
the  consent  of  the  parties.  In  Catto  v.  G.  Cudemo  &  Co.,  1  Conn.  Comp.  Dec. 
374,  where  it  appeared  that  claimant  had  a  brother  and  brother-in-law  resid- 
ing in  Italy,  that  if  he  could  purchase  a  small  place  near,  his  wife  and  chil- 
dren, with  such  help  as  they  might  receive  from  said  relatives,  would  be  able 
to  support  the  family,  and  that  in  these  surroundings  they  would  be  much 
better  situated,  an  agreement  for  commutation  of  the  total  disability  pay- 
ments into  a  lump  sum  was  approved  by  the  commissioner.  In  Riley  v.  Walsh, 
1  Conn.  Comp.  Dec.  505,  where  commutation  to  a  lump  sum  was  desired  in 
order  that  the  widow  might  lease  and  stock  a  small  farm,  she  expecting  to 
derive  her  support  therefrom,  and  both  parties  requested  the  commutation,  it 
was  allowed.  In  Bucherri  v.  Hartford  Rubber  Works  Co.,  1  Conn.  Comp.  Dec. 
622,  it  was  held  that  in  view  of  the  claimant's  natural  desire  to  return  to 
his  home  in  Italy,  of  the  decreased  cost  of  living  there,  and  the  advantage 


§  179  workmen's  compensation  656 

ing  to  make  the  commutation,  it  will  be  authorized  where  con- 
venient to  the  applicant  and  he  is  shown  to  be  competent  to  safely 
invest  the  proceeds  without  squandering  tliem.^^  Commutations  to 
lump  sums  have  been  made  in  order  to  enable  the  employe  to 
invest  his  compensation  in  a  business  of  his  own,''^  to  return  to  his 

of  exchange  rates,  a  commutation  to  a  lump  sum  was  just  and  reasonable, 
and  an  amount  necessary  to  discharge  claimant's  indebtedness  in  this  countrj' 
and  provide  his  transportation  was  advanced,  and  the  remainder  deposited  in 
a  bank  agreed  upon  near  his  home,  to  his  account.  In  Pumpanelli  v.  Aberthaw 
Construction  Co.,  1  Conn.  Comp.  Dec.  620,  where  the  improvement  of  claim- 
ant's injured  eye  by  operation  was  possible,  but  uncertain,  and  not  one  which 
he  could  be  required  to  accept,  and  he  desired  a  commutation  to  a  lump  sum 
for  the  purpose  of  returning  to  his  wife  and  children  in  Italy,  and  the  em- 
ployer joined  in  the  request  for  commutation,  it  was  granted.  Where  it  ap- 
peared that  the  dependent  father,  residing  in  Italy,  was  in  extremely  straitened 
circumstances,  the  compensation  payments  were  commuted  to  a  lump  sum, 
under  section  17  of  the  Act.  Brio  v.  Carpenter,  Boxley  &  Herrick,  The 
Bulletin,  N.  Y.,  vol.  1,  No.  5,  p.  11. 

6  2  Green  v.  County  of  Alameda,  2  Cal.  I.  A.  C.  Dec.  636;  Wilson  v.  Gallegher, 
1  Cal.  I.  A.  C.  Dec.  306. 

Where  the  widow,  found  entitled  to  a  death  benefit,  asks  for  a  lump  sum 
settlement,  and  the  evidence  shows  her  to  be  possessed  of  business  experience, 
economical,  and  thrifty,  the  owner  of  her  own  home,  and  thoroughly  capable 
of  handling  money,  and  the  defendant  employer  advises  such  commutation, 
such  facts  are  sufficient  to  warrant  an  award  of  a  lump  sum  settlement. 
Green  v.  County  of  Alameda,  supra.  Commutation  of  the  weekly  death  bene- 
fit payments  to  a  lump  sum  discounted  at  the  statutory  rate  will  be  allowed, 
where  the  defendant  is  willing  to  pay  a  lump  sum  and  the  applicant  desires 
the  money  to  take  her  to  her  family  in  Texas  and  to  purchase  a  house  and 
small  tract  of  land  there  to  aid  in  her  support.  Owen  v.  Mahoney  Bros.,  1 
Cal.  I.  A.  C.  Dec.  308. 

6  3  The  commutation  of  the  weekly  payments  of  the  award  to  a  lump  sum 
was  here  allowed,  where  the  employ§  was  a  man  thirty-four  years  of  age  and 
desired  the  money  in  a  lump  sum  to  start  a  small  grocery  store  in  a  com- 
munity where  the  chances  of  success  were  found  by  the  Commission  after 
investigation  to  be  good.  Kelly  v.  Snare  &  Triest  Construction  Co.,  1  Cal.  I. 
A.  C.  Dec.  471.  But  where  an  applicant  who  had  sustained  an  injury  entitling 
him  to  $2,557.44  requested,  against  the  opposition  of  his  employer,  a  com- 
mutation to  enable  him  to  purchase  a  dairy  herd  for  his  milk  business,  such 
facts  were  an  insufficient  basis  for  commutation.  Casson  v.  Northwestern 
Pacific  Ry.  Co.,  2  Cal.  I.  A.  C.  Dec.  729. 


657  COMPENSATION  §  179 

native  land,®*  to  discharge  a  mortg-age  on  the  dependent's  home,^^ 
and  also  where  the  employer  was  about  to  wind  up  its  business 

Gi  Where  a  stevedore,  who  had.  accidentally  lost  one  of  his  eyes  and  was 
unable  to  follow  his  trade,  requested  commutation  of  his  disability  indemnity 
to  enable  him  to  return  to  Norway,  where  his  parents  resided  in  a  home 
belonging  to  him,  there  to  take  up  the  business  of  a  fisherman,  and  it  appeared 
that  he  was  an  industrious,  temperate,  and  thrifty  man,  a  commutation  of  the 
whole  sum  was  made.  Olsen  v.  Western  Fuel  Co.,  2  Cal.  I.  A.  C.  Dec.  643.  An 
employer  will  be  allowed  to  settle  his  liability  for  compensation  by  the  pay- 
ment of  a  lump  sum,  instead  of  in  weekly  payments,  where  the  possibility  of 
the  workman's  future  improvement  is  uncertain,  and  the  employ6  wishes 
to  return  to  his  native  country,  provided  that  the  sum  be  paid  by  the  purchase 
of  a  ticket  for  transportation  for  him,  and  the  balance  upon  his  departure. 
Bedini  v.  Northwestern  Pacific  R.  R.  Co.,  1  Cal.  I.  A.  C.  Dec.  312.  But  where 
the  only  reason  assigned  by  the  applicant  for  the  commutation  of  a  permanent 
disability  award  is  his  desire  to  return  to  his  native  country  to  invest  the 
balance  there,  such  reason  is  insufHcieut  to  justify  the  Commission  in  order- 
ing that  the  amount  of  benefit  made  payable  be  discounted  to  a  lump  sum. 
Galante  v.  Mammoth  Copper  INIining  Co.  of  Maine,  2  Cal.  I.  A.  C.  Dec.  732. 

65  Except  in  cases  of  exceptional  urgency,  as  to  enable  a  widow  of  the  de- 
ceased employe  to  discharge  a  mortgage  upon  the  family  home,  the  Com- 
mission will  not  require  a  defendant  against  its  objections  to  pay  compensa- 
tion in  a  lump  sum.  W^ilson  v.  Gallegher,  1  Cal.  I.  A.  C.  Dec.  306.  A  com- 
mutation to  a  lump  sum  of  a  portion  of  the  death  benefit  awarded  to  the 
mother  of  an  employe  will  be  allowed  where  it  is  to  be  used  to  discharge  a 
mortgage  upon  her  home.  State  Comp.  Insur.  Fund  of  the  State  of  Cal.  v. 
Jacobsen,  1  Cal.  I.  A.  C.  Dec.  311.  The  commutation  of  a  portion  of  the 
award  to  a  lump  sum,  with  proper  allowance  for  interest  deductions  in  find- 
ing the  present  worth  of  future  payments  so  commuted,  will  be  allowed, 
where  the  amount  is  sought  to  enable  the  dependent  to  remove  incumbrances 
on  the  family  home,  defray  funeral  expenses,  and  meet  an  unsecured  note 
given  by  the  deceased.  Kennedy  v.  Guardian  Casualty  &  Guaranty  Co.,  1 
Cal.  I.  A.  O.  Dec.  152.  But  where  an  injured  employe  asks  that  the  indem- 
nity awarded  be  commuted  to  a  lump  sum  to  enable  him  to  purchase  furni- 
ture for  a  rooming  house  and  pay  off  a  mortgage  on  property  of  his  mother 
in  Wisconsin,  and  there  is  no  showing  that  it  is  necessary  for  the  protec- 
tion of  the  applicant,  or  for  his  best  interests,  the  request  will  be  refused. 
Kruger  v.  Strehlow,  Freese  &  Peterson,  2  Cal.  I.  A.  C.  Dec.  334. 

Where  the  widow  inherited  from  her  husband  a  house  heavily  mortgaged, 
and  also  some  insurance,  and  it  appeared  that  if  her  compensation  were 
commuted  to  a  lump  sum  she  could  pay  off  the  mortgage  and  so  escape  pay- 
ing interest,  and  a  competent  business  man  volunteered  to  attend  to  the 
HoN.CoMP. — 42 


§  179  workmen's  compensation  658 

and  leave  the  state. *^  Requests  for  commutation  have  been  re- 
fused where  the  applicant  was  shown  to  be  intemperate,®^  and 
where  he  was  suffering  mental  disability.®^ 

The  Nebraska  Act  leaves  the  question  of  how  much  shall  be  paid 
in  a  lump  sum  in  ordinary  cases  to  the  agreement  of  interested  par- 
ties, but  in  such  serious  matters  as  death  and  permanent  disability, 
where  the  interests  of  those  dependent  upon  the  workman  may  be 
involved,  the  question  of  whether  it  is  for  the  best  interests  of  the 
dependents  to  have  the  payments  made  periodically  or  to  be  made 
in  a  lump  sum  must  be  submitted  to  the  district  court,  acting  in  a 
capacity  somewhat  analogous  to  that  of  a  guardian  or  next  friend 
of  the  dependents,  for  its  approval  or  rejection.  The  object  of  this 
provision  is  to  preserve  the  rights  of  persons  often  inexperienced  in 
business  matters  and  unable  to  protect  themselves,  and  to  deter- 
mine whether  it  is  to  their  best  interests  to  substitute  a  lump  sum, 
which  might  easily  be  dissipated,  for  payments  made  in  lieu  of 

payment  of  the  mortgage  and  assist  her  in  safely  investing  the  balance, 
without  pay  therefor,  commutation  was  allowed.  Zarling  v.  North  Side  Coal 
Co.,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  29. 

6  6  Where  a  death  benefit  had  been  rendered  against  an  employer  who  was 
not  insured,  and  it  was  later  shown  that  the  employer  was  about  to  wind  up 
its  business  and  to  leave  the  state,  and  the  widow  of  the  deceased  employ^ 
was  shown  to  be  competent  to  handle  the  balance  of  the  award  due  her,  the 
balance  was  commuted  in  accordance  with  the  provisions  of  the  Act  and 
made  payable  at  once.  Decounter  v.  United  Greenwater  Copper  Co.,  2  Cal. 
I.  A.  C.  Dec.  700. 

67  Where  an  injured  employ^  asks  that  the  indemnity  awarded  be  com- 
muted to  a  lump  sum  to  establish  him  in  business,  and  it  appears  that  he  is 
intemperate  and  had  been  arrested  for  drunkenness  even  since  his  injury, 
and  there  are  no  unusual  circumstances  to  justify  commutation,  his  request 
will  be  refused.     Olson  v.  Tice,  2  Cal.  I.  A.  C.  Dec.  333. 

6  8  Where  an  employe  was  in  a  bad  mental  condition,  suffering  from  some 
brain  trouble  which  made  him  very  dull  and  stupid,  but  the  exact  character 
of  the  disability  was  very  uncertain,  and  the  claimant  was  unable  to  show- 
any  advantage  in  a  lump  sum  settlement,  or  that  he  was  able  to  conserve  a 
large  sum  of  money,  the  awarding  of  a  lump  sum  was  inadvisable,  and  was 
denied.     Catterson  v.  County  of  Los  Angeles,  2  Cal.  I.  A.  C.  Dec.  9S1. 


659  COMPENSATION  §  179 

wages. ®^  There  is  no  provision  in  this  Act  allowing-  either  party 
to  compel  the  employer  to  pay,  or  the  workman  or  dependent  to 
receive,  a  lump  sum  satisfaction/"  An  agreement  made  by  the 
parties  subject  to  "consent"  of  the  court  is  prerequisite,^^  Such 
agreement,  if  reasonable  and  made  in  good  faith,  is  binding  on  the 
insurer/^ 

6  9  Bailey  v.  U,  S.  Fidelity  &  Guaranty  Co.,  99  Neb.  109,  155  N.  W.  237. 

70  (Rev.  St.  1913,  §  36S1)  Bailey  v.  U.  S.  Fidelity  &  Guaranty  Co.,  supra; 
Johansen  v.  Union  Stockyards  Co.,  99  Neb.  328,  156  N.  W.  511. 

The  Employers'  Liability  Act  allows  the  parties  interested  to  "settle  all 
matters  of  compensation  between  themselves"  (Rev.  St.  1913,  §  3677).  The 
amount  of  compensation,  when  not  agreed  upon  by  the  parties,  is  to  be  de- 
termined by  the  district  court  (section  36S0),  and  except  as  expressly  provid- 
ed in  the  Act  must  be  payable  periodically  (section  3666).  Pierce  v.  Boyer- 
Van  Kuran  Lumber  &  Coal  Co.,  99  Neb.  321,  156  N.  W.  509.  When  the 
amount  of  compensation  in  periodical  payments  has  been  determined,  either 
by  agreement  of  the  parties  or  by  decision  of  the  court,  it  "may  be  com- 
muted to  one  or  more  lump  sum  payments,  except  compensation  due  for 
death  and  permanent  disability."  (Rev.  St.  1913,  §  3681)  Id.  There  is  no 
requirement  in  the  section  of  the  statute  which  applies  to  residents  of  this 
country  that  six  months  must  elapse  before  an  agreement  for  a  lump  sum 
payment  may  be  made,  or  the  consent  of  the  district  court  be  procured  to 
such  an  agreement.  Bailey  v.  U.  S.  Fidelity  &  Guaranty  Co.,  99  Neb.  109, 
155  N.  W.  237.  In  such  case  no  other  or  different  authority  for  making 
such  commutation  is  provided  by  that  section.  It  still  depends  upon  the 
agreement  of  the  parties,  except  that  their  right  to  so  agree  in  the  specified 
cases  depends  upon  "the  consent  of  the  district  court."     Id. 

71  Although  in  general  the  agreement  of  the  parties  will  authorize  such 
commutation,  in  case  of  death  or  permanent  disability,  the  consent  of  the 
court  is  also  necessary.  If  the  district  court,  upon  careful  investigation, 
finds  that  special  circumstances  exist,  making  it  necessary  to  commute  to  a 
lump  sum  for  the  protection  of  the  workman  or  his  dependents,  the  court 
may  "consent"  to  such  agreement  by  the  parties.  Pierce  v.  Boyer-Van  Ku- 
ran Lumber  &  Coal  Co.,  99  Neb.  321,  156  N.  W.  509. 

7  2  If  an  employer  and  the  party  to  whom  payment  is  to  be  made  make  a 
reasonable  agreement  in  good  faith  for  the  payment  of  a  lump  sum,  not  in- 
consistent with  the  amount  of  the  periodical  payments  previously  determined, 
the  agreement  will  bind  an  insurance  company,  which  has  assumed  a  risk 
under  section  3688,  Rev.  St.  1913,  equally  with  the  employer.  It  has  no 
greater  rights  than  he  has,  and  cannot  block  a  settlement  by  objecting  to 
payment  in  a  lump  sum  merely  because  it  was  not  consulted.     Bailey  v.  U. 


§  179  workmen's  compensation  660 

The  Nevada  Industrial  Commission,  believing  that  the  indis- 
criminate exercise  of  the  authority  conferred  by  section  31  of  the 
Nevada  Industrial  Insurance  Act,  which  provides  that  the  Commis- 
sion may,  in  its  discretion,  allow  the  conversion  of  compensation 
provided  for  in  this  Act  into  a  lump  sum  payment,  under  such  rules, 
regulations,  and  system  of  computation  as  may  be  devised  for  ob- 
taining the  present  value  of  such  compensation,  would  nullify  the 
spirit  and  intent  of  the  Act,  announced  by  resolution  that  such 
authority,  as  a  matter  of  policy,  would  be  exercised  only  in  ex- 
traordinary cases,  as  in  practically  all  cases  it  is  better  for  the 
beneficiaries  to  receive  the  award  to  which  they  are  entitled  in  in- 
stallments at  stated  intervals,  rather  than  in  a  lump  sum.''^ 

The  New  Jersey  Act,  as  amended  in  1913,  not  only  fixes  the  rate 
and  manner  of  computation,  but  indicates  principles  for  the  court's 
guidance  in  passing  on  an  application  for  commutation.  It  pro- 
vides that:  "In  determining  whether  the  commutation  asked  for 
will  be  for  the  best  interest  of  the  employe  or  the  dependents  of 
the  deceased  employe,  or  that  it  will  avoid  undue  expense  or  undue 
hardship  to  either  party,  the  judge  of  the  court  of  common  pleas 
will  constantly  bear  in  mind  that  it  is  the  intention  of  this  Act  that 
the  compensation  payments  are  in  lieu  of  wages,  and  are  to  be 
received  by  the  injured  employe  or  his  dependents  in  the  same 
manner  in  which  wages  are  ordinarily  paid.  Therefore  commuta- 
tion is  a  departure  from  the  normal  method  of  payment  and  is  to 
be  allowed  only  when  it  clearly  appears  that  some  unusual  circum- 
stances warrant  such  a  departure.  Commutation  shall  not  be  al- 
lowed for  the  purpose  of  enabling  the  injured  employe,  or  the  de- 

S.  Fidelity  &  Guaranty  Co..  99  Neb.  109,  155  N.  W.  237.  "We  find  nothing  in 
the  statute  to  justify  the  claim  that  if  the  employer  and  the  workman,  or 
the  dependent  person  to  whom  payment  is  due,  agree  upon  a  lump  sum  in 
lieu  of  the  periodical  payments,  an  insurance  company  has  any  right  to  ob- 
ject to  the  manner  of  payment  agreed  upon  by  the  parties  by  the  consent 
of  the  court."  M. ;  Pierce  v.  Boyer-Van  Kuran  Lumber  &  Coa'l  Co.,  99  Neb, 
321,  156  N.  W.  509. 

73  Rep.  Nev.  Indus.  Com.  1913-14,  p.  24. 


661  COMPENSATION  §   180 

pendents  of  a  deceased  employe,  to  satisfy  a  debt,  or  to  make  pay- 
ment to  physicians,  lawyers,  or  any  other  persons."  '^'^  Before 
awarding  a  lump  sum,  the  judge  must  determine  what  sum  should 
be  paid  periodically,  and  should  state  the  method  by  which  he 
reached  his  result  and  the  reasons  which  induced  him  to  commute 
the  periodical  payments  into  a  lump  sum.'^^  His  decision  should  be 
based  on  specific  findings  of  fact  supported  by  legal  evidence.'^'' 

In  Minnesota  the  matter  of  settlement  is  governed  by  sections 
13  and  14  of  the  Act,  but  the  question  how  and  in  what  manner 
such  settlement  shall  be  paid  is  left  with  the  parties  to  agree  up- 
on. When  a  lump  sum  is  agreed  upon,  it  is  final,  and  not  subject  to 
readjustment.  Settlement  means  one  thing,  and  payment  of  the 
amount  settled  upon  another,  and  when  the  parties  agree  that 
the  sum  fixed  shall  be  paid  in  lump,  and  that  sum  is  in  fact  paid, 
the  matter  is  concluded.'''^  The  parties  in  controversy  must  agree 
to  a  lump  sum  award  before  the  court  has  any  right  to  commute 
the  payments  to  a  lump  sum.  The  court  cannot  commute  the  pay- 
ments against  the  will  of  either  party. ^^ 

§  180.     Amount 

"Commute"  indicates  a  lessening  of  the  amount  of  payment.'^^ 
The  amount  to  be  awarded  in  a  lump  sum  is  ordinarily  the  pres- 

74  P.  L.  N.  J.  1913,  p.  309,  §  2,  par.  21. 

75  (P.  L.  1911,  p.  134)  Mockett  v.  Ash  ton,  84  N.  J.  Law,  452,  90  Atl.  127. 
The  determination  of  the  trial  judge  should  set  forth,  in  cases  where  weekly 
payments  are  to  be  commuted  in  a  lump  sum,  the  basis  of  award  iu  amount 
per  week  and  number  of  weeks ;  the  commuted  amount  under  paragraph  21 
being  expressly  predicated  on  such  finding.  (Laws  1911,  p.  142,  §  2,  par.  20) 
Long  V.  Bergen  County  Court  of  Common  Pleas,  84  N.  J.  Law,  117,  86  Atl. 
529. 

7  6  (St.  1911,  p.  143,  §  2,  par.  21)  New  York  Shipbuilding  Co.  v.  Buchanan. 
84  N.  J.  Law,  543,  87  Atl.  86. 

7  7  (Gen.  Laws  1913,  c.  467,  §  22,  subd.  1;  Gen.  St.  1913,  §  8216)  Op.  Atty. 
Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  8. 

7  8  State  ex  rel.  Anseth  v.  District  Court  (Minn.)  158  N.  W.  713. 

7  9  As  used  in  a  provision  of  the  Ohio  Act  that  a  Board  may  commute  peri- 
odical  benefits  to   one  or  moi'e  lump  sum  payments,   the  word   "commute" 


§  181  workmen's  compensation  662 

ent  worth  of  that  sum  which  would  otherwise  be  payable.^"  How- 
ever, in  the  absence  of  a  statute  authorizing  deductions  for  interest, 
payment  on  a  lump  sum  settlement  must  be  for  the  full  amount.^ ^ 

§  181.     Deductions  from  award  or  settlement 

In  computing  the  sum  payable,  the  rule  is  that  regard  must  be 
had  to  any  payment,  allowance,  or  benefit  received  from  the  em- 
ployer, but  not  payment  of  debts  or  anything  received  otherwise 
than  from  the  employer.^^     Deductions  for  previous  overpayments 

means  that  the  Board  may  authorize  the  payment  to  the  depenflent  of  some- 
thing less  than  he  would  otherwise  receive.  (Wk.  Conip.  Act,  §  40)  State  v. 
Indus.  Com.,  92  Ohio  St.  434,  111  N.  E.  299. 

8  0  Where,  on  petition  for  payment  of  compensation  in  a  lump  sum,  it  ap- 
pears that  it  would  be  for  the  best  interests  of  both  parties  that  the  pay- 
ment be  thus  made,  the  amount  awarded  in  a  lump  sum  should  be  the  pres- 
ent worth  of  that  sum  to  which  the  petitioner  would  be  entitled  under  the 
Act.  (Wk.  Comp.  Act  1912,  Jones  &  A.  Ann.  St.  1913,  par.  5449  et  seq.) 
Staley  v.  Illinois  Central  R.  R.  Co.,  1S6  111.  App.  593.  In  commuting  the  peri- 
odical payments  to  a  lump  sum,  it  is  error  to  multiply  the  weekly  minimum 
by  the  prescribed  number  of  weeks.  Award  must  be  made  sufficient  to  re- 
duce the  lump  sum  to  the  present  value  of  the  periodical  payments.  (P.  L. 
1911,  p.  137,  §  2,  par.  lie)  James  A.  Banister  Co.  v.  Kriger,  84  N.  J.  Law,  30, 
85  Atl.  1027  (rehearing  denied  89  Atl.  923).  A  lump  sum  settlement,  made 
by  taking  the  present  value  of  the  periodical  payments  computed  at  5  per 
cent,  simple  interest,  is  not  error.  Bailey  v.  U.  S.  Fidelity  &  Guaranty  Co., 
99  Neb.  109,  155  N.  W.  237. 

SI  (Gen.  Laws  Minn.  1913,  c.  467,  §  25;  Gen.  St.  1913,  §  8220).  Op.  Atty. 
Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  9. 

8  2  On  application  for  compensation  the  judge  must  consider  a  lump  sum 
of  flO  paid  under  an  agreement  which  he  had  refused  to  register.  Horsman 
V.  Glasgow  Navigation  Co.,  Ltd.  (1910)  3  B.  W.  C.  C.  27,  C.  A.  The  cost  of 
maintaining  an  injured  seaman  in  a  hospital  in  port  for  fifteen  weeks  after 
his  accident,  which  the  employers  were  not  required  to  do  under  the  Mer- 
chant Shipping  Act,  must  be  regarded  in  fixing  the  amount  of  compensation. 
Kempson  v.  Owners  of  Moss  Rose  (1911)  4  B.  W.  C.  C.  101,  C.  A.  Payment 
by  the  employers  of  a  bill  for  a  workman's  hospital  maintenance  and  medi- 
cal treatment  is  a  factor  to  be  considered  in  assessing  compensation.  Sor- 
ensen  v.  Gaff  &  Co.  (1913)  G  B.  W.  C.  C.  279,  Ct.  of  Sess.  Where  employ- 
ers paid  an  injured  workman  considerably  more  than  the  amount  of  full 


663  COMPENSATION  §   181 

have  been  held  improper.^^  But  where  a  workman  agrees  to  have 
his  rent  deducted  from  his  weekly  compensation,  such  deductions 
are  proper.** 

Awards  for  temporary  disability  or  under  a  schedule  for  specific 
injuries  cannot  be  deducted  from  awards  for  permanent  disabil- 

compensation  during  nine  montlis,  and  tlien  in  paying  half  wages  failed  to 
consider  certain  extras,  and  refused  to  correct  tbeir  error,  which  they  admit- 
ted, unless  the  amounts  overpaid  in  the  first  nine  months  should  be  deducted, 
they  were  entitled  to  such  reduction.     Porter  v.  Whitbread  &  Co.  (1914)  7 

B.  W.  C.  C.  205,  C.  A.  The  fact  that  a  workman  who  was  injured  in  the 
employ  of  a  distress  committee  received  poor  relief  of  10s.  a  week  during 
his  inability  is  not  to  be  considered  in  assessing  the  compensation.  Gilroy 
V.  Mackie  et  al.  (Leith  Distress  Committee),  (1910)  2  B.  W.  C.  C.  269,  Ct.  of 
Sess.  Where  under  the  Merchant  Shipping  Act  a  seaman  who  is  injured 
while  the  ship  is  at  sea  must  be  paid  his  wages  until  he  can  be  discharged 
at  a  port,  the  eight  days'  wages  paid  the  workman  in  this  instance  for  the 
time  between  the  accident  and  his  discharge  at  port  are  not  to  be  consid- 
ered in  assessing  compensation.  McDermott  v.  Owners  of  S,  S.  "Tintoretto" 
(1911)  4  B.  W.  C.  C.  123,  H.  L.,  and  2  B.  W.  C.  C.  208,  O.  A. 

That  the  deceased  workman  was  a  member  of  the  Duluth  Firemen's  Re- 
lief Association  and  that  his  dependents  draw  benefits  therefrom  does  not 
bar  recovery  of  compensation  nor  reduce  the  amount  thereof.  The  firemen 
who  join  this  association  are  held  to  have  purchased  its  protection  for  the 
benefit  of  themselves  and  their  families,  and  not  for  the  benefit  of  their  em- 
ployers.    State  ex  rel.  City  of  Duluth  v.  District  Court  (Minn.)  158  N.  W.  791. 

83  It  was  improper  for  a  county  court  judge  in  assessing  compensation  to 
deduct  overpayments  previously  received  by  the  workman  before  arbitration. 
Flynn  v.  Burgess  (1914)  W.  C.  &  Ins.  Rep.  238,  C.  A.  Where  an  employer 
paid  compensation  of  14s.  7d.  per  week  under  an  agreement  up  until  June, 
and  then  on  review  secured  their  reduction  to  10s.  beginning  in  February, 
he  could  not  withhold  present  payments  because  of  the  previous  overpay- 
ments. Hosegood  &  Sons  v.  Wilson  (1911)  4  B.  W.  C.  C.  30,  C.  A.  Where  a 
judge,  on  review  of  compensation,  found  that  in  consequence  of  receiving 
fuU  amount  of  compensation  from  August  to  October,  whereas  he  should  only 
have  had  part  compensation  from  August  to  December,  a  workman  had  al- 
ready received  more  than  he  was  legally  entitled  to,  and  therefore  awarded 
no  compensation  for  the  remaining  two  months,  he  was  in  error  in  regarding 
the  previous  overpayments.    Doyle  v.  Cork  Steam  Packet  Co.  (1912)  5  B.  W. 

C.  C.  350,  C.  A. 

8  4  Brown  v.  South  Eastern  &  Chatham  Ry.  Co.'s  Managing  Committee 
(1910)  3  B.  W.  C.  C.  428,  C.  A. 


§  181  workmen's  compensation  664 

ity.®^  In  view  of  the  provision  of  the  California  Act  that  "liability 
for  compensation  shall  not  be  reduced  or  affected  by  any  insurance 
contribution  or  other  benefit  whatsoever  due  to  or  received  by  the 
person  entitled  to  such  compensation,"  a  contribution  received  by 
an  injured  employe  from  his  labor  union  during  a  strike,  which 
occurs  during-  his  period  of  disability,  cannot  be  deducted  from  the 
compensation  due  him.**  The  California  Commission  has  no  au- 
thority to  allow  deductions  to  be  made  from  the  amount  of  an 
award  for  debts  owed  by  the  injured  employe  to  the  employer, 
where  such  debts  do  not  arise  out  of  the  payment  in  advance  or 
on  account  of  compensation  due  for  his  injury.*^ 

In  California  an  employer  is  allowed  to  deduct  from  the  tempo- 
rary total  disability  indemnity  due  an  injured  employe  the  amounts 
earned  by  him  while  working  elsewhere  during  the  period  for  which 
such  disability  indemnity  was  payable,**  but  such  deduction  will 

86  Awards  under  Wk.  Comp.  Act  Wash.  §  5,  subd.  (3)  (d)  for  a  temporary 
period,  paid  montlily  or  otlierwise,  are  not  to  be  deducted  from  awards  for 
dismemberment  or  "permanent  partial  disability"  provided  in  subdivision 
(f).     (Wk.  Comp.  Act  Wash.  §  IG)  Opinion  Atty.  Gen.  Wash.  Dec.  12,  1911. 

8'o  (Wk.  Comp.,  etc.,  Act,  §  34  [b])  Schebrosky  v.  Morrison  &  (yNeil,  1  Cal. 
I.  A.  C.  Dec.  401.     See  §  7S,  ante. 

8  7  Cason  V.  Star  Laundry,  1  Cal.  I.  A,  C.  Dec.  485.  The  Industrial  Acci- 
dent Commission  is  without  jurisdiction  or  authority  to  allow  a  deduction  to 
be  made  from  compensation  awarded  an  injured  employ^  for  debts  claimed 
to  be  owed  by  him  to  his  employer.  The  power  of  the  Commission  to  make 
deductions  from  compensation  due  is  expressly  limited  by  section  29  (a)  of 
the  Act,  and  the  cases  enumerated  therein  do  not  include  set-ofts  arising  out 
of  other  transactions.  Furthermore,  to  allow  such  set-off  would  require  the 
Commissioner  to  sit  as  a  court  and  determine  liabilities  arising  from  con- 
tract or  perhaps  tort,  while  its  jurisdiction  is  expressly  limited  to  cases  aris- 
ing undv°r  the  Compensation  Act.  Stormont  v.  Bakersfield  Laundry  Co.,  1 
Cal.  I.  A.  C.  Dec.  533.  The  amount  of  the  award  for  compensation  must  be 
paid,  without  set-off  of  money  owed  by  the  employ^  to  the  employer,  under 
section  29  (a)  of  the  Act.     Manford  v.  Carstenbrook,  3  Cal.  I.  A.  C.  Dec.  21. 

8  8  Harbart  v.  Eryson  Estate  Co.,  1  Cal.  I.  A.  C.  Dec.  515.  While  the  fact 
that  an  employ^  earning  wages  for  a  few  days  at  a  time,  but  suffering  a  re- 
lapse each  time,  is  not  inconsistent  with  the  condition  of  temporary  total 
disability,  the  employer  or  insurance  carrier  is  entitled  to  have  such  earnings 


065  COMPENSATION  §    181 

not  be  allowed  from  an  award  for  permanent  disability.*^  Under 
the  New  Jersey  Act,  that  the  workman  worked  for  the  employer 
for  several  years  after  the  accident  for  the  same  wages  as  before 
does  not  entitle  the  employer,  in  the  absence  of  an  agreement  that 
the  wages  shall  be  considered  as  compensation,  to  a  deduction  there- 
for from  the  award. ^'^  In  Wisconsin,  compensation  may  be  allowed 
to  a  workman  totally  incapacitated  from  again  following  his  oc- 
cupation, but  able  to  engage  in  other  employments,  without  any 
deduction  for  such  amounts  as  he  may  be  able  to  earn  in  the  other 
employments.^^  In  a  recent  case  the  court  seemed  to  favor  the  op- 
posite holding,  but  considered  itself  bound  by  the  terms  of  the  Act. 
It  said  (opinion  by  Judge  Barnes)  :  "This  is  a  new  statute  con- 
taining a  large  number  of  provisions  which  deal  with  a  new  and 
complex  subject.  It  may  well  be  that,  if  the  Legislature  had  in 
mind  the  concrete  case  with  which  we  are  dealing,  it  would  have 
provided  for  such  a  contingency.  It  is  not  very  probable  that  it 
was  intended  to  give  an  employe  who  lost  a  thumb  and  finger  of 
the  left  hand  the  same  compensation  that  he  would  be  entitled  to 

deducted  from  the  temporary  total  disability  benefits  payable  by  them.     Co- 
lot  V.  Union.  Lumber  Co..  1  Cal.  I.  A.  C.  Dec.  512. 

8  9  Where  an  employe  is  awarded  a  permanent  partial  disability  indemnity, 
and  within  three  months  after  his  injury  returns  to  work  at  full  wages,  this 
fact  does  not  entitle  the  employer  to  a  deduction  from  the  payments  of 
compensation,  since  the  benefits  for  permanent  disability  are  not  based  upon 
immediate  loss  of  earnings,  but  upon  a  sum  necessary  to  recompense  the  in- 
jured employe  for  the  physical  loss  for  the  rest  of  his  life.  Peterson  v.  Pel- 
lasco,  2  Cal.  I.  A.  C.  Dec.  199.  Where  an  injured  employ^,  awarded  com- 
pensation for  a  permanent  partial  disability,  before  the  period  of  weekly 
payments  therefor  has  expired,  returns  to  work  with  the  same  employer  un- 
der full  pay  and  performs  full  service,  the  employer  is  not  entitled  to  have 
credited  on  the  award  of  disability  indemnity  any  part  of  the  full  pay  given 
the  employe  for  such  service.  Wray  v.  Panama-Pacific  International  Exposi- 
tion, 3  Cal.  I.  A.  C.  Dec.  6. 

9  0  De  Zeng  Standard  Co.  v.  Pressey,  86  N.  J.  Law,  469,  92  Atl.  278. 

81  Mellen  Lumber  Co.  v.  Indus.  Com.,  154  Wis.  114,  142  N.  W.  187,  L.  R,  A. 
1916A,  374,  Ann.  Cas.  1915B,  997. 


§  182  workmen's  compensation  66G 

receive  had  he  been  so  maimed  that  he  was  totally  incapacitated 
from  doing  any  kind  of  work.  If  this  is  so,  then  it  is  apparent  that 
the  Legislature  overlooked  the  contingency  with  which  we  are  deal- 
ing, or  it  in  fact  has  provided  that  the  future  earning  capacity  of 
the  employe  must  be  taken  into  account.  The  plain  and  obvious 
meaning  of  the  language  used  in  the  statute  is  generally  the  safest 
guide  to  follow  in  construing  it.  Seeking  hidden  meaning  in  vari- 
ance with  the  language  used  is  a  perilous  undertaking,  which  is 
quite  as  apt  to  lead  to  an  amendment  of  a  law  by  judicial  con- 
struction as  it  is  to  arrive  at  the  actual  thought  in  the  legislative 
mind.  Where  a  statute  plainly  says,  as  this  one  does,  that  the 
loss  in  case  of  partial  disability  shall  consist  of  such  percentage  of 
the  weekly  earnings  of  the  employe  as  shall  fairly  represent  the 
proportionate  extent  of  the  impairment  of  his  earning  capacity  in 
the  employment  in  which  he  was  working  at  the  time  of  the  ac- 
cident, we  fail  to  see  how  the  court  would  be  justified  in  adding 
thereto  the  following  limitation :  'Less  such  sums  as  the  em- 
ploye might  be  able  to  earn  in  some  other  calling.'  "  ^^ 

§  182.     Deduction  of  payments  made 

Payments  on  account  of  compensation,  made  b)'-  the  employer 
before  the  hearing,  may  be  deducted  from  the  amount  of  the  award 
made  against  him  at  the  hearing.^^    Where  compensation  under  the 

92  Id. 

93  After  an  injury,  which  entitled  a  workman  to  an  award  of  ?5  a  week, 
he  went  back  to  work  and  was  paid  $10  a  week,  although  he  did  not  earn 
that  amount.  Upon  proceedings  under  the  Workmen's  Compensation  Act  the 
judge  credited  the  employer  with  $5  a  week  for  39  out  of  41  weeks  for  which 
they  had  paid.  It  was  held  that  there  was  no  error,  as  it  was  a  fair  pre- 
sumption that  the  payments  were  made  in  discharge  of  the  legal  liability,  so 
far  as  there  was  such  liability,  and  that  payments  in  excess  of  that  liability 
were  either  compensation  for  labor  or  were  a  benevolence.  (P.  L.  1913,  p. 
312)  Blackford  v.  Green,  87  N.  J.  Law,  359,  94  Atl.  401. 

Where  irregular  or  advance  payments  are  made  by  an  employer  to  an  in- 
jured employe  on  compensation  which  may  later  be  awarded,  the  employer 
is  allowed  to  have  such  payments  credited  upon  an  award  against  him,  pro- 


607  COMPENSATION  §   182 

schedule  is  in  lieu  of  all  other  compensation,  and  a  claimant  has  al- 
ready received  compensation  allowed  for  temporary  total  disability 
before  it  becomes  known  that  the  sight  of  his  eye  is  completely  de- 
stroyed, this  amount  is  to  be  deducted  from  compensation  provided 
by  the  schedule. °*  Money  advanced  to  the  decedent  as  unearned 
wages  may  be  deducted  from  compensation  due  him,  but  not  from 
benefits  due  to  the  widow  on  account  of  her  dependency,  or  for  burial 
expense ;  the  rights  of  the  widow  being  separate  and  distinct  from 
those  of  the  workman. ^^  No  deduction  can  be  made  for  medical 
services  furnished  by  the  employer  beyond  the  period  required  by 
statute.®^  In  death  cases,  where  employers  make  advances  that 
are  absolutely  needed  and  necessary  to  the  injured  employes,  and 
no  serious  question  is  raised  concerning  the  correctness  of  same, 
the  Illinois  Board  will  allow  credit  for  them.^^     Under  the  Califor- 

vided  that  no  serious  harm  has  been  done  the  employe  because  of  the  irregu- 
larity of  the  payments.  Unless  money  be  paid  as  part  payment  on  account 
of  compensation,  it  cannot  be  credited  to  the  employer,  as  the  Act  contains 
no  provisions  authorizing  the  Commission  to  adjust  a  set-off  or  counterclaim. 
Johnson  v.  Cluett  Peabody  Co.,  2  Cal.  I.  A.  C.  Dec.  7.  Where  an  employer 
by  mistake  secures  a  simple  accident  insurance  policy  upon  an  employe,  in- 
stead of  an  employer's  compensation  liability  policy,  and  the  employe  is  in- 
jured, and  payments  are  made  to  him  by  the  insurance  company  in  accord- 
ance with  the  policy,  the  employer  is  entitled  to  have  credited  to  himself  the 
amount  paid,  upon  the  theory  that  the  payments  made  by  the  insurance  com- 
pany were  in  reality  payments  procured  to  be  made  by  him  upon  account  of 
liability  for  compensation.  Mecartea  v.  Marsh,  2  Cal.  I.  A.  C.  Dec.  128. 
Where  during  the  first  five  weeks  of  total  disability  following  the  injury  the 
applicant  received  full  wages  from  his  employer,  and  during  the  next  six 
weeks  of  total  disability  received  more  than  65  per  cent,  of  his  earnings,  the 
full  sum  paid  should  not  be  treated  as  100  per  cent,  compensation  during  the 
five  weeks,  but  the  whole  sum  paid  should  be  credited  in  full  on  whatever 
sum  was  awarded  to  the  applicant.  Ramirez  v.  Binkley  &  Wayne,  3  Cal.  I. 
A.  C.  Dec.  33. 

9  4  Kreppel  v.  Boyland,  2  N.  Y.  St.  Dep.  Rep.  489. 

95  Hackney  v.  City  of  New  Britain  School  Board,  1  Conn.  Comp.  Dec.  160. 

96  Mahoney  v.  Seymour  Mfg.  Co.,  1  Conn.  Comp.  Dec.  292. 

9  7  Rediger  v.  Pekin  Wagon  Co.,  Bulletin  No.  1,  111.,  p.  14G. 


§  183  workmen's  compensation  668 

nia  Act,  where  an  employe,  so  disabled  that  his  service  is  of  little 
value,  is  kept  at  work  on  full  pay,  instead  of  being  paid  indemnity, 
the  Commission  will  hold  such  pay  to  be  compensation,  and  no  part 
of  it  to  be  wages,  since  the  law  does  not  contemplate  satisfying  its 
compensation  provisions  by  payment  of  wages,  instead  of  com- 
pensation.^^ But  where  he  permits  the  injured  employe  to  re- 
main in  living  quarters  formerly  furnished  her,  but  later  furnished 
to  her  sister,  also  an  employe,  and  as  a  part  of  the  sister's  contract 
of  employment,  the  value  of  such  quarters  cannot  be  deducted  as 
a  part  payment  of  the  compensation  due  the  injured  employe.^^ 
Nor  where  money  is  paid  by  an  employer  to  his  employe,  after  an 
injury  sustained  by  the  latter,  as  a  pure  gift,  and  not  as  a  part 
payment  on  liability  to  be  later  determined,  can  the  employer  sub- 
sequently change  his  mind  and  claim  a  pecuniary  benefit  for  what 
was  at  the  time  intended  as  an  act  of  generosity  or  charity.  Such 
payments  cannot  be  credited  upon  compensation  later  awarded.^ 

§  183.     Deduction  for  interest 

The  Alinnesota  Act  provides  that  an  employer  may  deposit  with 
"any  savings  bank  or  trust  company  of  the  state  to  be  approved  and 
designated  by  the  court,"  "a  sum  equal  to  the  present  value  of  all 
future  installments  of  compensation  calculated  on  a  6  per  cent, 
basis,"  and  that  "such  sum,  together  with  all  interest  thereon," 
shall  thereafter  be  held  in  trust  for  the  employe  or  his  dependents, 
and  "payments  from  said  fund  shall  be  made  by  the  trustee  in  the 
same  amounts  and  at  the  same  time  as  are  herein  required  of  the 

9  8  Turner  v.  City  of  Santa  Cruz,  2  Cal.  I.  A.  C.  Dec.  991.  Where  an  em- 
ployer elects  to  pay  100  per  cent,  compensation,  instead  of  65  per  cent,  pro- 
vided by  the  Act,  the  employe  will  not  be  required  to  refund  any  portion  of 
indemnity  so  paid,  and  the  employer  will  be  credited  only  for  the  number 
of  payments  he  has  made,  and  not  with  the  amount  thereof  in  money.     Id. 

0  9  Fowler  v,  Zellerbach-Levison  Co.,  1  Cal.  I.  A.  C.  Dec.  609. 

1  Johnson  v.  Cluett  Peabody  Co.,  2  Cal.  I.  A.  C.  Dec.  7. 


669  COMPENSATION  §   184 

employer  until  such  fund  and  interest  shall  be  exhausted."  ^  Under 
this  provision,  where  employer  and  employe  agree  upon  the  amount 
of  compensation  to  be  paid,  and  the  court  grants  permission  to 
the  employer  to  pay  the  amount  to  the  trustee,  the  employer  may 
deduct  6  per  cent,  on  all  deferred  payments.^ 

§  184.     Increased  and  reduced  compensation 

The  Massachusetts  Act  provides  that,  "if  the  employe  is  injured 
by  reason  of  the  serious  and  willful  misconduct  of  a  subscriber  or 
of  any  person  regularly  intrusted  with  and  exercising  the  powers 
of  superintendence,  the  amounts  of  compensation  *  *  *  gh^n 
be  doubled."  *  Under  this  provision  it  has  been  held  that  serious 
and  willful  misconduct  on  the  part  of  the  employer  is  not  estab- 
lished by  failure  to  provide  safety  devices,^  by  poor  working  condi- 
tions permitted  by  him,«  by  failure  to  supply  a  foreman,^  or  prop- 

2  Minn.   Wk.  Comp.  Act,   Gen.  Laws  1913,  c.  467,   §  28    (Gen.   St.  1913,   § 

8223). 

3  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  11,  p.  15. 

4  Mass.  Wk.  Comp.  Act,  §  3,  pt.  II. 

5  An  employer  neglected  to  provide  a  "skid"  on  the  right-hand  side  of  the 
staging,  and  by  reason  of  this  reglect  the  employe  was  fatally  injured.  This 
was  not  serious  and  willful  misconduct  on  the  part  of  the  employer.  Ker- 
rigan V.  Employers'  Liab.  Assur.  Corp.,  Ltd.,  2  Mass.  Wk.  Comp.  Cases,  360 
(decision  of  Com.  of  Arb.). 

6  The  employe  claimed  double  compensation  because  of  the  failure  of  an 
inexperienced  workman  to  properly  repair  an  elevator  which  he  was  re- 
quired to  operate.  Because  of  the  poor  manner  in  which  the  elevator  was 
repaired,  it  broke  loose  from  the  wire  cable  which  supported  it,  falling  with 

7  The  employ^,  with  other  men,  had  been  ordered  to  take  down  a  staging 
section  by  section,  and  had  been  instructed  by  the  employer  to  be  very  care- 
ful about  the  manner  in  which  it  was  taken  down.  The  staging  was  removed 
by  the  workmen,  under  general  orders  from  the  employer,  but  without  proper 
supervision  by  him  or  any  other  person  vested  with  authority  to  supervise,  and 
after  the  work  had  proceeded  for  about  an  hour  and  a  half  the  structure 
fell.  The  employ^  was  not  entitled  to  double  compensation.  Holland  v.  Fi- 
delity &  Deposit  Co.  of  Md.,  2  Mass.  Wk.  Comp.  Cases,  308  (decision  of  Com. 
of  Arb.,  affirmed  by  Indus.  Ace.  Bd.). 


§  184  workmen's  compensation  670 

er  tools,*  or  sufficient  workmen,  where  their  presence  would  not 
have  prevented  the  accident ;  ^  nor  is  such  misconduct  shown  by 
the  exercise  of  poor  judgment  on  the  part  of  a  foreman. ^°     The 

him  in  it  from  the  second  to  the  first  floor  of  the  building.  It  was  held  that 
the  Employe  was  not  entitled  to  double  compensation.  Jacques  v.  Travelers' 
Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  478  (decision  of  Com.  of  Arb.).  The 
employe  claimed  that  his  personal  injury  was  due  to  the  condition  of  the 
saw  which  he  was  using.  Two  fellow  employes  testified,  however,  that  the 
injury  happened  because  the  claimant  reached  over  the  saw  to  remove  a 
stick  which  had  become  wedged,  and  cut  his  thumb  thereby.  He  could  have 
shut  off  the  power  and  removed  the  obstruction  without  danger  of  injury. 
It  was  held  that  the  injury  was  not  caused  by  the  serious  and  willful  mis- 
conduct of  the  employer.  Mikonis  v.  Royal  Indemnity  Co.,  2  Jlass.  Wk. 
Comp.  Cases,  384  (decision  of  Com.  of  Arb.). 

8  The  employ^  received  a  fatal  injury  while  working  in  the  pole  yard  of 
the  subscriber,  his  head  being  crushed.  It  was  claimed  that  the  pole  which 
caused  his  death  would  not  have  rolled  over,  but  for  the  inability  of  the  em- 
ploye's fellow  workmen  to  hold  it,  because  of  the  inefficient  cant  hooks  sup- 
plied and  their  inexperience.  The  evidence  showed  that  all  of  the  men  on 
the  job  had  been  employed  for  a  period  adequate  to  become  familiar  with 
the  work  which  they  were  required  to  do,  and  had  been  instructed  by  the 
superintendent  and  foreman  the  proper  manner  in  which  to  perform  this 
work.  The  cant  hooks  were  not  in  good  repair,  and  a  new  supply  of  hooks 
had  been  ordered  by  the  subscriber.  The  Committee  held  that  the  widow 
was  not  entitled  to  double  compensation.  Tobin  v.  J5tna  Life  Insur.  Co.,  2 
Mass.  Wk.  Comp.  Cases,  612  (decision  of  Com.  of  Arb.,  affirmed  by  Indus. 
Ace.  Bd.). 

9  The  employ^  claimed  that  the  failure  of  the  subscriber  to  provide  a  "tag 
man,"  whose  sole  duty  should  be  to  signal  the  engineer  when  to  start  and 
stop  the  engine,  was  serious  and  willful  misconduct.  The  foreman  acted  as 
"tag  man"'  when  the  necessity  arose,  and  the  engine  was  not  in  operation  at 
the  time  of  the  accident.  Therefore  the  presence  of  an  employe,  whose  sole 
duty  was  to  act  as  "tag  man,"  would  not  have  prevented  the  injury,  and  the 
employ^  was  not  entitled  to  double  compensation.  Marshall  v.  U.  S.  Fidelity 
&  Guaranty  Co..  2  Mass.  Wk.  Comp.  Cases,  119  (decision  of  Com.  of  Arb.). 

10  The  employ^  claimed  serious  and  willful  misconduct  of  the  subscriber 
through  a  person  exercising  superintendence — a  foreman.  The  evidence 
showed  that  the  injury  was  not  due  to  the  serious  and  willful  misconduct  of 
the  foreman,  the  latter's  act  in  ordering  the  employ^  to  resume  the  work  of 
digging  out  a  blast  hole  being  neither  willful  nor  deliberate.  It  could  not 
be  said  that  the  foreman  had  any   idea  serious  consequences  would  result 


671  COMPENSATION  §   184 

breaking  of  a  wire  rope,  allowing  a  heavy  heater  coil  to  fall  upon 
the  workman,  has  been  held  not  to  show  serious  and  willful  mis- 
conduct of  the  employer.^^ 

Under  a  provision  of  the  Wisconsin  Act  that,  in  case  the  in- 
jury is  caused  by  the  failure  of  the  employer  to  comply  with  any 
lawful  order  of  the  Commission,  the  compensation  awarded  shall 
be  increased  15  per  cent.,  where  the  injury  to  the  muscles  and  lig- 
aments of  the  workman's  arm  was  sustained  by  coming  in  contact 
with  set  screws  on  a  line  shaft,  which  were  there  contrary  to  an 
order  of  the  Commission,  the  compensation  award  was  so  in- 
creased;^^ likewise  where  the  injury  was  due  to  a  violation  of  an 
order  requiring  guards  in  front  of  the  feed  rolls  on  an  ironer,  to 
prevent  the  workman's  hands  being  drawn  into  the  roUs/^    Where 

from  the  carrying  out  of  his  instructions.  The  blast  had  been  carefully  in- 
spected immediately  after  the  explosion  by  a  party  of  five,  including  the  fore- 
man, one  of  the  employers,  and  the  employe,  and  as  a  result  of  this  inspec- 
tion the  two  former  were  satisfied  that  there  had  been  a  perfect  explosion 
in  each  of  the  blast  holes.  The  employe  was  not  entitled  to  double  compen- 
sation. Revita  v.  Royal  Indemnity  Co.,  2  Mass.  Wk.  Comp.  Cases,  352  (de- 
cision of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Bd.).  The  employe  claimed  that 
his  injury  was  due  to  the  serious  and  willful  misconduct  of  a  person  exer- 
cising superintendence.  The  evidence  showed,  however,  that  the  belt  had  not 
broken  frequently,  as  claimed  by  him,  and  that  it  was  not  defective,  but 
was  made  of  good  material.  The  employ^  was  held  not  entitled  to  double 
compensation.  Oliveira  v.  ^tna  Life  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases, 
517  (decision  of  Com.  of  Arb.). 

11  The  employe  was  instructed  by  his  foreman  to  block  a  car  in  the  test- 
ing room  about  400  feet  from  the  scene  of  the  fatality,  but  during  the  ab- 
sence of  the  foreman  voluntarily  left  his  work  to  assist  other  workman  in 
loading  a  heavy  heater  coil  on  a  flat  car.  While  he  was  helping  the  wire  rope 
which  held  the  heater  coil  broke,  and  the  coil  fell  upon  and  fatally  injured 
him.  A  claim  for  double  compensation,  on  the  ground  that  the  injury  oc- 
curred by  reason  of  the  serious  and  willful  misconduct  of  the  employer,  was 
filed  by  the  widow,  but  was  dismissed.  Malewicki  v.  American  Mut.  Liab. 
Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  366  (decision  of  Com.  of  Arb.). 

12  (Wk.  Comp.  Act  Wis.  §  2394—9  [5]  a)  Hickox  v.  Beloit  Concrete  Co., 
Rep.  Wis.  Indus.  Com.  1914-1.5,  p.  37. 

13  Higgins  V.  Hanover  &  Butler,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  37. 


§  185  workmen's  compensation  672 

the  accident  was  caused  by  the  employe's  willful  failure  to  use  a 
safety  device  provided  by  his  employer,  and  by  his  willful  failure 
to  obey  a  reasonable  rule  regarding  the  use  of  a  safety  device,  name- 
ly, an  insulated  tool,  compensation  was  reduced  15  per  cent.^* 

§  185.     Restriction  of  employe's  rights  in  insurance  contract 

It  is  contrary  to  the  policy  of  the  Minnesota  Act  to  permit  the 
employer  and  the  insurance  company  to  make  any  collateral  agree- 
ment which  will  impair  or  abridge  the  employe's  right  to  recover 
direct  from  the  insurance  company  (where  the  circumstances  are 
such  as  authorize  the  employe  to  proceed  directly  against  the  in- 
surance company)  the  full  benefits  provided  for  in  part  2  of  the 
Act,  including  reimbursement  for  medical,  surgical,  and  hospital 
services,  which  should  have  been,  but  were  not,  seasonably  fur- 
nished by  the  employer.  The  Legislature  can  properly  regulate 
the  terms  of  the  contract  which  the  employer  and  the  insurance 
company  may  enter  into,  and  has  done  so  by  requiring  that,  in  so 
far  as  policies  are  issued,  they  shall  provide  for  compensation  ac- 
cording the  full  benefits  of  part  2.  Since  the  parties  to  such  an 
insurance  contract  are  bound  to  enter  into  the  contract  specified 
in  the  statute,  if  at  all,  they  cannot  indirectly  and  secretly  enter 
into  a  contract  which  nullifies  or  abridges  the  contract  which  the 
statute  requires  them  to  make,  nor  can  they  in  any  way  limit  the 
rights  of  the  employes  thereunder.  What  cannot  be  done  direct- 
ly cannot  be  done  indirectly  and  secretly. ^^  While  this  Act  does  not 
attempt  to  regulate  the  premium  which  the  insured  shall  pay  for  his 
insurance,  it  does  prescribe  the  contract  which  shall  be  made,  if  any 
is  made,  and  the  insurance  company  cannot  diminish  the  obligation 
which  the  law  says  shall  be  assumed.^^ 

14  Busek  V.  Wisconsin  Gas  &  Electric  Co.,  Rep.  Wis.  Indus.  Com.  1914-15, 
p.  38. 

15  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  14, 

16  Id.  The  insurer  caunot  limit  its  liability  under  either  parts  1  or  2  of 
the  Act,  but  must  assume  the  full  obligations  imposed  upon  the  employer  by 


G73  COMPENSATION  §  187 

§  186.     Pensions 

Under  the  Washington  Act,  if  part  of  a  reserve  is  converted  into 
a  lump  sum,  the  pension  is  to  be  reduced  proportionately.^^  When 
total  disability  is  probable,  monthly  allowances,  not  a  lump  sum, 
will  be  paid.^^  When  a  workman  makes  a  statement  that  he  has  a 
a  wife,  or  a  wife  and  children  under  the  age  of  sixteen  years,  but  is 
living  apart  from  them,  the  Commission  requires  an  affidavit  from 
the  workman  to  show  that  he  is  contributing  to  their  support.  In 
the  absence  of  satisfactory  proof  of  this  fact,  his  compensation  is 
rated  on  the  basis  of  an  unmarried  man.^®  Pension  warrants  will 
be  mailed  direct  to  the  foreign  address  of  a  dependent  residing 
abroad.^" 

§  187.     Change,  suspension,  and  termination  of  compensation 

The  Workmen's  Compensation  Acts,  in  so  far  as  they  relate  to 
payments  to  the  employe,  speak  in  terms  of  disability.  When  the 
period  of  disability  ceases,  compensation  ceases.^^     The  right  to 

the  provisions  of  the  Act.  In  other  words,  the  liability  of  the  insurer  cannot 
be  limited  to  certain  specified  amounts,  as  was  formerly  the  practice  in  writ- 
ing employers'  liability  insurance.  It  follows  that  policies  of  insurance  are 
not  valid  which  eliminate  the  medical  attention  feature  specified  in  section 
18  of  the  Act.  (Gen.  Laws  1913,  c.  467,  §  IS;  Gen.  St.  1913,  §  8212)  Op.  Atty. 
Gen.  on  Minn.  Wk.  Corap.  Act,  Bui.  9,  p.  13. 

17  (Wk.  Comp.  Act  Wash.  §  7)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  18. 

18  (Wk.  Comp.  Act  Wash.  §  5,  subd.  [3]  [d])  Id.  p.  17. 

19  (Wk.  Comp.  Act  Wash.  §  3)  Id.  p.  5. 

20  (Wk.  Comp.  Act  Wash.  §  .3)  Id.  p.  6. 

21  "The  statute  speaks  in  terms  of  disability.  All  of  its  provision  being 
considered,  it  does  not  mean  that  compensation  must  be  paid  during  a  period 
of  actual  disability,  and  also,  if  a  member  is  lost,  during  a  period  equal  to 
the  one  during  which  total  disability  is  deemed  to  continue.  It  does  not 
provide  a  specific  indemnity  for  the  loss  of  a  member  in  addition  to  com- 
pensation for  disability.  The  aim  of  the  statute  is  to  afford  compensation 
it  the  employ^  is  disabled.    When  the  period  of  disability  ends,  compensation 

HoN.CoMP. — 43 


1 


§  187  workmen's  compensation  674 

compensation  for  incapacity  being  peculiar  to  the  employe  himself, 
ceases  at  his  death;  --  but  where  the  employe  dies  before  such  com- 
pensation is  paid,  leaving  no  dependents,  the  clairh  for  unpaid  com- 
pensation usually  becomes  a  part  of  the  assets  of  his  estate.-^  How- 
ever, under  the  express  provision  of  the  Illinois  Act,  a  claim  for  un- 
paid compensation  previously  awarded  abates  upon  the  death  of 

ceases.  Limron  v.  Blair,  ISl  Mich.  7G,  147  N.  W.  546;  Gorrell  v.  Battelle,  93 
Kan.  370,  144  Pac.  244. 

In  Tatta  v.  Capitol  City  Lumber  Co.,  1  Conn.  Comp.  Dec.  161,  where  the 
claimant's  incapacity  was  due  largely  to  psj'chic  depression,  he  having  been 
discharged  from  the  hospital  as  "recovered,"  and  it  was  shown  that  a  gradual 
return  to  normal  activities  and  work  was  the  best  treatment  for  him,  com- 
pensation was  terminated. 

In  Glidder  v.  Ilaliver,  The  Bulletin,  N.  Y.,  vol.  1,  No.  4,  p.  10,  where  the 
workman  had  been  discharged  from  the  hospital  as  recovered,  ana  a  specialist 
selected  by  the  Commission  testified  positively  that  he  was  malingering,  fur- 
ther compensation  was  denied. 

Upon  the  medical  referee  certifying  that  a  man  is  physically  able  to  re- 
turn to  his  work,  although  he  might  be  nervous,  the  payments  of  compensa- 
tion should  be  terminated.  Crantield  v.  Ansell  (1911)  4  B.  W.  C.  C.  57,  C.  A. 
Where  a  sheriff-substitute  found  that  a  hoistman  recovering  from  an  injury 
was  able  to  do  work  on  the  level,  but  would  endanger  himself  to  do  any 
climbing,  and  that  to  return  to  work  would  be  the  best  treatment  for  him, 
and  upon  these  facts  ended  the  employer's  liability,  the  question  was  one  of 
fact  for  him  to  decide.  Cunningham  v.  McNaughton  &  Sinclair  (1910)  3  B. 
W.  C.  C.  577,  Ct.  of  Sess. 

2  2  Additional  compensation  allowed  for  permanent  incapacity  of  both  legs 
from  paralysis  ceased  at  the  employe's  death ;  the  right  to  such  compensation 
being  peculiar  to  the  employe,  not  created  for  the  benefit  of  his  dependents. 
(St.  1911,  c.  751,  pt.  2,  §§  0,  10,  and  §  11,  as  amended  by  St.  1913,  c.  696,  §  1) 
In  re  Burns,  218  JIass.  S.  105  N.  E.  601,  Ann.  Cas.  1916A,  787. 

In  Kilbride  v.  Pratt  &  Whitney  Co.,  1  Conn.  Comp.  Dec.  688,  it  was  held 
that  the  estate  of  a  deceased  workman  has  no  vested  interest  in  compensa- 
tion for  incapacity  which  would  have  been  payable  but  for  the  death,  and 
that  the  right  to  such  compensation  terminated  at  the  death  of  the  workman. 

2  3  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  11,  p.  29. 

The  compensation  that  has  actually  accrued  prior  to  the  death  of  the  em- 
ploye?, and  has  not  been  paid  to  him,  becomes  a  part  of  his  estate,  and  as  such 
is  collectible  by  his  administrator,  Schoenreiter  v.  Quincy  Mining  Co.,  Mich, 
Wk.  Comp.  Cases  (1916)  32. 


675  COMPENSATION  §    187 

the  employe  from  some  other  cause  than  the  injury.-*  The  sur- 
vival of  claims  of  dependents  is  considered  in  a  preceding  section. ^^ 

The  Massachusetts  Act  provides  that  any  w^eekly  payment  may 
be  reviewed  by  the  Industrial  Accident  Board  at  the  request  of  the 
association  or  of  the  employe,  and  that  on  such  review  it  may  be 
ended,  diminished,  or  increased,  subject  to  the  maximum  and  mini- 
mum amounts  provided  for  in  the  Act,  if  the  Board  finds  that  the 
condition  of  the  employe  warrants  such  action. ^"^  It  is  within  the 
power  of  the  Board  to  decide  that  for  a  time  compensation  shall 
be  suspended,  but  not  ended,  with  reservation  of  leave  to  the  em- 
ploye to  apply  for  further  payments  under  the  Act,  provided  this 
course  in  its  opinion  is  required  by  the  facts.  It  has  been  the  cus- 
tom under  the  English  Act  to  award  compensation  at  the  rate  of 
a  penny  a  week  to  keep  the  case  open  while  payments  are  other- 
wise suspended.-^  This  custom  does  not  prevail  in  the  United 
States.  But  it  is  not  necessary,  even  in  England,  that  this  be  done 
in  order  to  keep  the  case  alive,  provided  the  purpose  is  plain  not  to 
terminate  the  claim  definitely,  but  to  keep  it  open  for  further 
consideration  and  order.-*  That  the  prolongation  of  incapacity  is 
due  to  a  pre-existing  disease  does  not  authorize  discontinuance 
of  compensation  payments.-^ 

If  the  workman  is  disqualified  by  the  injury  to  continue  his  reg- 

24  Where  an  award  is  made  to  an  employ^  under  the  Act,  and  death  oc- 
curs, not  the  result  of  injury,  the  compensation  remaining  unpaid  at  the 
time  of  the  death  abates  under  section  21  of  the  Act.  Ticzkus  v.  Standard 
Office  Co.,  Bulletin  No.  1,  111.,  p.  176. 

2  5  See  §  79,  ante. 

26  (St.  1911,  c.  751,  pt.  3,  §  12)  In  re  Hunnewell,  220  Mass.  351,  107  N.  E. 
934. 

2  7  Id.,  supported  by  Owners  of  the  Vessel  Tynron  v.  Morgan,  [1909]  2  K.  B. 
66;  s.  c,  2  B.  W.  C.  C.  406,  and  Griga  v.  London  &  Northwestern  Ry.,  3  B. 
W.  C.  C.  116. 

2  8  In  re  Hunnewell,  220  Mass.  351,  107  N.  E.  934;  Taylor  v.  London  & 
Northwestern  Ry.,  [1912]  A.  C.  242,  245. 

2  9  Hills  V.  Oval  Wood  Dish  Co.  (Mich.)  158  N.  W.  214.     See  §  98,  ante. 


§  187  workmen's  compensation  676 

ular  employment,  the  fact  that  he  procures  temporary  employment 
in  a  different  occupation  for  a  few  days  at  equal  or  greater  wages  is 
not  conclusive  that  his  disability  has  ceased.®" 

Under  the  English  Act,  if  the  employe  has  his  compensation  re- 
duced on  account  of  his  return  to  work,  and  later  finds  that  he  is 
unable  to  work,  or  is  discharged,  and  cannot  find  other  light  work, 
his  compensation  payments  must  be  increased.^^  The  amount  of 
compensation  should  be  reduced,  but  not  suspended,  where  a  work- 
man previously  receiving  full  compensation  becomes  able  to  earn 

80  Simonelli  v.  Sargent  &  Co.,  1  Conn.  Comp.  Dec.  553 ;  Hanley  v.  Union 
Stockyards  Co.  (Neb.)  158  N.  W.  939. 

81  A  finding  upon  medical  evidence  which  reduced  the  payments  of  com- 
pensation to  Id.  a  week  does  not  bar  a  review  applied  for  by  the  workman, 
alleging  that  he  could  not  get  work  because  of  incapacity.  Sharman  v. 
Holliday  &  Greenwood,  Ltd.  (1901)  6  B.  W.  C.  C.  147,  C.  A.  (Act  of  1897). 
Where  a  collier  recovered,  and  his  compensation  was  reduced  to  Id.  a  week, 
but  he  was  unable  to  get  light  work,  and  broke  down  while  trying  to  do 
his  old  work,  he  was  entitled  to  review.  Walton  v.  South  Kirby,  Feather- 
stone  &  Hemsworth  Colliery,  Ltd.  (1912)  5  B.  W.  C.  C.  640,  C.  A.  Where  a 
judge,  assuming  that  the  employers  of  a  workman  who  was  liable  to  break- 
downs in  an  injured  knee  as  a  result  of  an  injury  would  tind  him  employ- 
ment which  he  could  do,  awarded  only  Id.  a  week,  but  the  man  applied  for 
review  because  he  could  not  get  work,  he  was  entitled  to  full  compensation. 
Thomas  v.  Fairbairu,  Lawson  &  Co.,  Ltd.  (1911)  4  B.  W.  C.  C.  195.  Where 
an  injured  workman  was  dismissed  after  doing  light  work  for  his  employer 
for  a  year  and  a  half,  and  found  himself  unable  to  get  any  work  elsewhere, 
he  was  entitled  to  review  upon  these  grounds.  McDonald  v.  Wilsons  & 
Clyde  Coal  Co.,  Ltd.  (1912)  5  B.  W.  C.  C.  478,  H.  L.  Where  the  employers  of 
a  boiler  maker,  who  had  lost  an  eye  by  accident,  paid  compensation  amount- 
ing to  Id.  a  Week  and  gave  him  employment  at  the  same  wages  as  he  receiv- 
ed before,  but  later  discharged  him,  and  he  was  able  to  get  work  only  as  a 
casual  laborer,  the  amount  of  the  compensation  was  increased.  Brown  v. 
Thornycroft  &  Co.,  Ltd.  (1912)  5  B.  W.  C.  C.  386,  C.  A.  Where,  after  a  judge 
had  reduced  the  weekly  compensation  received  by  a  butcher's  mate  on  a  ship 
for  loss  of  the  top  of  a  finger  to  Is.,  estimating  that  his  chances  of  employ- 
ment were  reduced  that  much,  the  workman  tried  and  was  unable  to  obtain 
work  on  account  of  his  physical  condition,  such  fact  was  a  change  in  cir- 
cumstances sufl3cient  to  justify  an  increase  to  los.  per  week,  which  was 
awarded.  Radcliffe  v.  Pacific  Steam  Navigation  Co.  (1910)  3  B.  W.  C.  C. 
185,  C.  A. 


677  COMPENSATION  §  188 

something  in  an  insane  asylum,  to  which  he  has  been  sent  because 
of  insanity,  although  the  insanity  was  not  in  consequence  of  the 
accident. ^^  Where  a  collier,  after  receiving  an  agreed  weekly  com- 
pensation for  six  weeks  for  an  injury  to  his  eye,  returned  to  his 
work  at  his  former  wages,  and  was  dismissed  two  weeks  later,  when 
part  of  the  mine  was  closed  down,  it  was  held  that  his  compensa- 
tion had  been  terminated  by  mutual  consent  when  he  returned  to 
work.^^ 

§  188.    California 

Where  the  disability  is  partial,  but  the  loss  of  earning  capacity 
total,  by  reason  of  inability  to  compete  in  the  open  labor  market, 
the  employer  may  secure  a  reduction  of  the  compensation  to  a 
basis  of  partial  disability  by  offering  the  employe  light  and  acces- 
sible employment  which  he  is  able  to  perform  in  his  disabled  con- 
dition. Upon  the  tender  of  such  employment  the  compensation  is 
thereby  reduced  to  65  per  cent,  of  the  difference  between  the  for- 
mer wages  and  the  wages  offered  him  for  such  light  work.^*  Where 
the  employer,  before  his  injured  employe  is  entirely  recovered  and 
able  to  resume  the  work  he  was  doing  at  the  time  of  the  accident, 
offers  easier  work  at  the  same  wages  as  were  paid  before  the  in- 
jury, the  employe,  if  able  to  perform  such  easier  tasks  at  that  time, 
must  either  accept  the  offer  or  forfeit  all  further  disability  compen- 
sation.^^    But  where  the  employe  shows  apparent  total  disability, 

3  2  Slater  v.  Blytli  Shipbuilding  &  Dry  Docks  Co.,  Ltd.  (1914)  7  B.  W.  C.  C. 
193,  C.  A. 

3  3  Bradbury  v.  Belworth  Coal  &  Iron  Co.  (1900)  2  W.  C.  C.  138,  C.  A. 

34Lindh  v.  Toyland  Co.,  Inc.,  2  Cal.  I.  A.  C.  Dec.  646.  If  the  employer 
furnishes  the  employ^  such  work  as  he  can  perform,  thereafter  until  the  ter- 
mination of  the  temporary  disability  the  employer  is  chargeable  only  with 
65  per  cent,  of  the  difference  between  the  wages  paid  for  the  light  work  pro- 
cured and  the  wages  the  employe  was  receiving  at  the  tilme  of  his  injury. 
Acrey  v.  City  of  Holtville,  2  Cal.  I.  A.  C.  Dec.  587. 

35  Denehy  v.  Panama-Pacific  International  Exposition  Co.,  1  Cal.  I.  A.  C. 
Dec.  109. 


§  1S8  workmen's  compexsation  678 

the  burden  is  on  the  employer  to  show  a  definite  earning  capacity 
in  the  employe.^"  If  there  is  serious  insubordination  and  drunken- 
ness, persisted  in  by  an  injured  employe  during  his  treatment,  sus- 
pension of  compensation  in  so  far  as  the  disability  is  continued  or 
aggravated  by  the  intoxication,  or  unreasonable  refusal  to  abide  by 
the  medical  treatment,  will  be  authorized. ^^  Where,  after  findings 
and  award  on  the  basis  of  partial  disability,  it  appears  that  such 
disability  has  become  total,  the  indemnity  will  be  increased  to  that 
for  total  disability.^*  Where  it  appears,  after  a  temporary  total  dis- 
ability indemnity  has  been  awarded,  that  the  injuries  sustained  are 
permanent  in  nature,  and  not  temporary,  the  findings  and  award 
will  be  amended,  after  proper  notice  to  all  parties  and  opportun- 
ity to  be  heard,  to  change  the  compensation  from  that  based  on 
temporary  disability  to  that  for  permanent  disability.    The  defend- 

36  Larnhart  v.  Rice-Landswick  Co.,  1  Cal.  I.  A.  C.  Dec.  557.  In  view  of 
the  provision  of  the  Act  that  due  regard  shall  be  had  to  the  ability  of  the 
injured  employ^  to  compete  in  an  open  labor  raarljet,  in  order  to  justify  the 
reduction  of  the  compensation  from  that  for  total  disability  to  partial  disa- 
bility it  is  necessary  to  show  that  the  disability  of  the  injured  person  does 
not  wholly  prevent  his  competing  in  the  open  labor  market.  Rally  v.  Island 
Transportation  Co.,  2  Cal.  I.  A.  C  Dec.  608. 

S7  Hill  V.  Guardian  Casualty  &  Guaranty  Co.,  1  Cal.  I.  A.  C.  Dec.  415. 

Where  a  worliman  with  a  fractured  jaw,  after  being  discharged  from  the 
hospital  with  instructions  to  return  to  have  it  dressed,  at  once  indulged  to 
great  excess  in  alcoholic  liquors,  contrary  to  the  instructions  of  his  physician, 
which  resulted  in  increase  of  disligurement  and  impairment  of  the  function 
of  the  jaw,  the  Commission  held  that  in  all  such  cases  thex'e  will  be  a  forfei- 
ture in  whole  or  in  part  of  compensation,  in  this  case  diminution  of  the 
award  one-third,  reducing  the  compensation  from  74  weeks  to  48  weeks. 
Kelliher  v.  Great  Western  Power  Co.,  2  Cal.  I,  A.  C.  Dec.  378.  Where,  on 
four  occasions  between  the  date  of  injury  and  the  date  of  operation  per- 
formed on  his  foot,  the  applicant  had  been  confined  in  a  hospital  for  intoxi- 
cation, and  upon  two  occasions  had  been  confined  in  a  padded  cell,  while 
this  did  not  relieve  the  employer  of  liability,  in  such  cases  the  employe  will 
suffer  a  reduction  in  the  allowance  of  compensation,  although  it  cannot  be 
determined  to  just  what  extent  the  disability  was  prolonged.  I.Iitchell  v. 
Occidental  Forwarding  Co.,  2  Cal.  I.  A.  C.  Dec.  336. 

8  8  (Roseberry  Act)  Manfredi  v.  Union  Sugar  Co.,  2  Cal.  I.  A.  C.  Dec.  920. 


679  COMPENSATION  §  188 

ant  will  be  credited  on  his  account  of  the  permanent  disability  with 
all  payments  he  may  have  made  upon  the  basis  of  temporary  dis- 
ability.^® Where,  after  an  award  of  continuing  total  disability  com- 
pensation for  injury  resulting-  from  a  fracture  of  the  skull  of  the 
workman,  it  is  discovered  that  the  continuing  disability  was  prox- 
imately due  to  a  syphilitic  condition  of  the  workman,  of  origin  prior 
to  the  accident,  and  not  due  to  the  accident,  an  order  will  be  made 
terminating  such  disability  indemnity. *° 

In  this  state,  "whenever  in  case  of  injury  the  right  to  compen- 
sation would  exist  in  favor  of  any  employe,  he  shall  upon  the  writ- 
ten request  of  his  employer,  submit  from  time  to  time  to  examina- 
tion by  a  practicing  physician.  *  *  *  So  long  as  the  employe, 
after  such  written  request  of  the  employer,  shall  fail  or  refuse  to 
submit  to  such  examination,  or  shall  in  any  way  obstruct  the  same, 
his  right  to  begin  or  maintain  any  proceeding  for  the  collection  of 
compensation  shall  be  suspended,  and  if  he  shall  fail  or  refuse  to 
submit  to  such  examination  after  direction  by  the  Commission,  or 
any  member  or  referee  thereof,  or  shall  in  any  way  obstruct  the 
same,  his  right  to  the  weekly  indemnity  which  shall  accrue  and 
become  payable  during  the  period  of  such  failure,  refusal  or  ob- 
struction, shall  be  barred."  *^     Where  an  employe  does  not  abide 

3  9  Hey  V.  Pacific  Coast  Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  38. 

Where  an  injured  employe  is  awarded  by  the  California  Commission  for  a 
short  temporary  total  disability  caused  by  an  injury  to  the  ends  of  two  fingers, 
and  some  months  later  it  is  shown  by  competent  medical  advice  that  a  slight 
permanent  partial  disability  has  resulted  from  the  accident,  the  Commission 
will,  after  notice  and  an  opportunity  to  be  heard  is  given  to  all  the  parties  in 
interest,  order  that  the  findings  and  award  be  amended  to  allow  compensation 
for  the  permanent  partial  disability,  deducting  therefrom  the  benefits  pre- 
viously paid  to  the  applicant  upon  the  basis  of  the  temporary  disability. 
Karas  v.  Northwestern  Pacific  Ry.  Co.,  2  Cal.  I.  A.  C.  Dec.  84. 

40  Cianetti  v.  Fremont  Consolidated  Mining  Co.,  2  Cal.  I.  A.  C.  Dec.  947. 

41  (Wk.  Comp.  Ins.  &  Safety  Act  Cal.  §  21)  This  provision  of  the  Act  will 
be  strictly  enforced.  Bianchini  v.  Selby  Smelting  &  Lead  Co.,  2  Cal.  I.  A. 
O.  Dec.  195. 

Where  an  employe,  after  receiving  written  notice  to  submit  to  a  medical 


§  188  workmen's  compensation  680 

by  the  instructions  of  his  physician,  and  thereby  greatly  increases 
his  disability,  the  employer  is  not  required  to  pay  compensation 
for  a  longer  period  than  the  employe  would  have  been  disabled,  had 
his  injury  taken  the  normal  course.  Compensation  is  not  payable 
for  such  portion  of  the  illness  as  is  due  to  the  injured  employe's 
own  actions  aggravating  his  disability.*^  But,  in  justice  to  the 
patient,  the  Commission  will  require  the  fact  of  insubordination, 
lack  of  co-operation  with  the  physician,  or  reprehensible  conduct 
to  be  clearly  established  before  it  will  sanction  the  cutting  oflf  of 
the  treatment  and  the  compensation  payments  allowed  by  law.*' 
The  employe  must  co-operate  with  the  physician  in  effecting  a 
cure.**  Where  an  employe  is  disabled,  but  it  appears  that  he  might 
be  cured  by  an  operation  or  hospital  treatment,  the  California  Com- 
mission has  ruled  that,  if  the  employer  offers  such  operation  and 
treatment  at  his  own  expense,  as  well  as  disability  indemnity  dur- 
ing the  disability  caused  by  the  treatment,  the  employe  must  accept 
it,  or  forfeit  his  right  to  compensation.*'     A  temporary  partial  dis- 

examination  at  a  reasonable  time  and  place  fixed  by  the  employer,  fails  or 
refuses  to  submit  to  such  examination,  his  right  to  commence  and  maintain 
proceedings  for  the  collection  of  compensation  is  by  section  21  suspended 
during  the  period  of  his  refusal,  and  an  application  filed  for  compensation 
during  the  period  must  be  dismissed.  Id.;  Parini  v.  Selby  Smelting  &  Lead 
Co.,  2  Cal.  I.  A.  C.  Dec.  192. 

But  the  notice  must  be  in  writing.  Where  an  injured  employ^  is  directed 
by  his  employer  to  go  to  a  certain  physician  for  examination,  and  either  mis- 
understands the  direction  or  refuses  to  abide  by  it,  and  does  not  report  for 
examination,  if  the  direction  is  given  orally,  the  failure  to  submit  to  examina- 
tion is  not  a  bar  to  the  proceedings  for  compensation.  Brain  v.  Eisfelder,  2 
Cal.  I.  A.  C.  Dec.  30. 

42  Smrakar  v.  Pacific  Lumber  Co.,  2  Cal.  L  A.  C.  Dec.  87. 

43  Hill  V.  Guardian  Casualty  &  Guaranty  Co.,  1  Cal.  I.  A.  C.  Dec.  415. 

44  The  employer  may  select  the  physician  to  treat  the  injured  person,  and 
it  is  incumbent  upon  the  employC\  if  he  accepts  the  services  tendered,  to  co- 
operate with  such  physician  in  effecting  a  cure.  Rainey  v.  McClain,  1  Cal.  I. 
A.  C.  Dec.  57. 

45  The  reasonable  cost  of  an  operation  to  relieve  an  injured  workman  from 
the  consequences  of  an  industrial  accident,  with  compensation  for  the  period 


681  COMPENSATION  §   188 

ability  award  for  hernia  will  be  terminated  upon  offer  by  the  em- 
ployer or  his  insurance  carrier,  at  its  own  expense,  of  an  operation 
for  the  cure  of  the  hernia,  and  its  rejection  or  acceptance  by  the 
employe,  and  its  satisfactory  outcome.*^ 

of  disability  caused  by  the  operation,  was  awarded  him,  and  the  employer 
required  to  tender  at  its  own  cost  suitable  surgical  and  hospital  facilities  for 
the  operation,  and  if  the  applicant  then  declined  the  operation,  the  defendant 
was  to  be  freed  from  all  liability.  Haley  v.  Hardenburg,  1  Cal.  I.  A.  C.  Dec. 
127.  "VN^here  medical  experts  determine  that  an  operation  will  probably 
greatly  aid  applicant's  recovery  from  injury,  the  Commission  will  make  the 
payment  of  compensation  conditional  upon  the  injured  man's  acceptance  of 
an  operation  when  it  is  tendered  by  the  employer  or  insurance  carrier.  Ayl- 
ward  V.  Oceanic  Steamship  Co.,  2  Cal.  I.  A.  C.  Dec.  95.  It  being  shown  that 
traumatic  neurosis  may  be  cured  by  proper  scientific  treatment,  the  Commis- 
sion will  make  its  award  upon  the  basis  of  a  temporary  partial  disability, 
with  a  provision  that  if  the  employer  shall  tender  proper  hospital  and  medical 
treatment  for  at  least  thirty  days  to  cure  the  injured  employe,  with  fun- 
compensation  during  the  period  of  his  treatment,  and,  being  undergone,  it  is 
successful,  compensation  may  be  discontinued.  It  also  provided  that,  if  the 
injured  employs  refuses  to  accept  such  hospital  treatment,  compensation  may 
thereupon  cease.  Finley  v.  San  Francisco  Stevedoring  Co.,  2  Cal.  I.  A.  C. 
Dec.  174.  Where  it  seems  probable  at  the  time  of  the  award  that  the  appli- 
cant will  require  a  surgical  operation  thereafter  to  remove  the  disability,  the 
award  may  provide  that,  upon  operation  being  recommended  by  competent 
surgical  authority  and  being  undergone,  the  employer  shall  pay  the  reasonable 
cost  of  the  operation  and  a  full  disability  benefit  during  the  resultant  incapac- 
ity, but  if  the  applicant  refuses  to  submit  to  an  operation  after  its  being  so 
recommended,  all  disability  payments  shall  cease  during  the  continuance  of 
his  refusal.  Gordon  v.  Evans,  1  Cal.  I.  A.  C.  Dec.  94.  Where,  owing  to  mis- 
taken diagnosis  and  inadequate  treatment,  the  employe  continues  to  be  totally 
disabled  after  the  ninety-day  limit  has  expired,  but  it  appears  that  with  prop- 
er treatment  he  could  be  entirely  cured,  the  Commission  will  make  an  award 
for  temporary  total  disability  payments  to  continue  during  the  disability,  but 
conditioned  that  if  the  employer  or  his  insurance  carrier  tender  proper  treat- 
ment to  cure  and  relieve  the  applicant  from  the  effects  of  the  injury,  the  ap- 
plicant must  accept  the  treatment,  or  forfeit  further  compensation.  Johnson 
V.  Pacific  Surety  Co.,  1  Cal.  I.  A.  C.  Dec.  560. 

46  An  employe  having  a  serious  hernia  is  handicapped  practically  50  per 
cent,  in  his  industrial  activities.  Since  his  employer  cannot  be  required  to 
furnish  medical  treatment  after  the  expiration  of  the  ninety  days  from  the 
date  of  the  accident,  a  temporary  partial  disability  award  should  be  made  in 
favor  of  such  employe  so  injured,  in  the  sum  of  50  per  cent,  of  65  per  cent,  of 


§  189  workmen's  compensation  682 

§  189.     Release 

A  settlement  made  by  an  employer  and  the  giving  of  a  release 
by  the  injured  workman  ordinarily  bars  a  claim  by  such  work- 
man.*^ A  release  executed  by  the  employe,  releasing  his  employer 
from  compensation  liability,  will  not,  however,  bar  the  right  of  any 
other  person,  such  as  his  dependents.*®  Nor  does  a  release  by  the 
deceased  employe's  widow  bar  an  action  by  the  personal  repre- 
sentative for  the  benefit  of  infant  children.*"  A  release  of  the  em- 
ployer from  liability  for  compensation  will  not  release  the  third 
person  whose  negligence  caused  the  injury,  where  no  negligence  of 
the  employer  contributed  to  the  injury.^"  Nor  will  a  settlement  be- 
tween his  employer  and  the  employe,  releasing  all  claims  on  ac- 
count of  the  injury,  include  a  claim  for  malpractice  against  physi- 

his  average  weekly  earnings,  to  terminate,  however,  upon  the  tender  of  the 
employer  or  his  insurance  carrier,  at  its  own  expense,  of  an  operation  for  the 
cure  of  the  hernia,  and  its  rejection  or  acceptance  by  the  employe  and  its 
satisfactory  outcome.    Brandt  v.  Globe  Indenmity  Co.,  1  Cal.  I.  A.  C.  Dec.  309. 

4  7  (Wk.  Comp.  Act  Wash.  §  8)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  19. 

4  8  An  employe  cannot,  by  making  a  settlement  with  a  third  person,  preclude 
his  wife  from  recovei'ing  compensation  for  his  subsequent  death  as  a  result 
of  the  injuries.  The  widow's  right  to  compensation  can  be  discharged  only 
by  herself,  where  she  is  the  sole  dependent,  or  by  those  authorized  to  act  in 
her  behalf.  (St.  1911,  c.  751,  pt.  2,  §§  6,  7,  22)  In  re  Cripp,  216  Mass.  5S6,  104 
N.  E.  565,  Ann.  Cas.  1915B,  828;  Williams  v.  Vauxhall  Colliery  Co.,  [1907]  2 
K.  B.  433,  436;   Howell  v.  Bradford  Co.  (1911)  104  L.  T.  R.  N.  S.  433. 

In  an  action  under  the  Wisconsin  Act  it  was  held  that  a  payment  to  de- 
ceased for  one  day's  work  lost  by  reason  of  his  disabilitj',  and  execution  by 
him  of  a  release  by  which  he  released  the  company  from  all  claims  which  he 
might  have  under  the  Compensation  Act,  did  not  affect  the  claim  of  his  widow 
for  compensation  for  his  death.  Milwaukee  Coke  &  Gas  Co.  v.  Indus.  Com., 
160  Wis.  247,  151  N.  W.  245. 

As  to  effect  in  general  of  settlement  to  bar  dependent's  claim,  see  §  78, 
ante.    As  to  settlement  agreements  in  general,  see  §  202,  post. 

49  (Wk.  Comp.  Act  1911,  §  2,  par.  12)  West  Jersey  Trust  Co.  v.  Phila.  & 
Reading  R.  R.  Co.,  88  N.  J.  Law,  102,  95  Atl.  753. 

5  0  Jacowicz  V.  Delaware,  L.  &  W.  R.  R.  Co.  (1915)  87  N.  J.  Law,  273,  92  Atl. 
946,  Ann.  Cas.  1916B,  1222. 


683  COMPENSATION  §    189 

dans  who  attended  the  employe. ^^  A  release  to  the  third  party 
whose  negligence  caused  the  injury,  given  without  consideration 
and  without  the  approval  of  the  employer's  insurer,  does  not  bar 
an  action  by  the  employe  against  the  insurer  for  compensation.^^ 
It  may,  however,  be  evidence  of  the  employe's  election  to  take  dam- 
ages, instead  of  compensation,  and  so  bar  a  claim  for  the  latter,^^ 
A  release  from  compensation  liability,  given  by  an  employe's  guard- 
ian, does  not  bar  an  action  for  damages,  where  the  injured  employe, 
by  reason  of  his  minority  and  illegal  employment,  was  not  within 
the  Compensation  Act.^*  An  agreement  for  additional  specific 
compensation  for  the  loss  of  three  fingers,  but  not  stating  that  it  is 
intended  to  cover  all  claims  for  additional  compensation,  does  not 
bar  an  award  of  additional  compensation  for  an  injury  to  the  hand 
arising  out  of  the  same  accident.^" 

It  has  been  stated  that  while,  as  a  matter  of  law,  the  authority 
of  an  employer  under  the  California  Act  to  exact  the  execution  of 
any  form  of  contract  or  release  as  a  condition  precedent  to  the  pay- 
ing of  compensation  duly  awarded,  further  than  a  plain  receipt 
which,  when  the  final  payment  is  made,  may  probably  be  made  a 
receipt  in  full  of  all  claim,  is  doubtful,  no  reasonable  beneficiary 
of  the  Act  should  object  to  releasing  a  right  which  he  ought  not 

51  (Gen.  St.  1913,  §  8195  et  seq.)  Viita  v.  Dolan  (Minn.)  155  N.  W.  1077. 

52  (Wk.  Comp.  Act,  §§  29,  33)  Woodward  v.  E.  W.  Conklin  &  Sons,  Inc.,  171 
App.  Div.  736,  157  N.  Y.  Supp.  948. 

53  In  Gilliland  v.  Kearns,  1  Conn.  Comp.  Dec.  277,  where  an  accident  was 
sustained  under  circumstances  creating  a  legal  liability  for  damages  in  a 
third  party,  and  the  claimant  prior  to  the  hearing  had  executed  a  release  on 
valuable  consideration  discharging  said  third  party  from  all  liability  in  con- 
nection with  the  accident,  it  was  held  he  had  exercised  his  option  to  claim 
compensation  or  damages,  and  could  not  recover  compensation.  (Wk.  Comp. 
Act,  pt.  B,  §  6.) 

5  4  Stetz  V.  F.  Mayer  Boot  &  Shoe  Co.  (Wis.)  156  N.  W.  971. 

5  5  (St.  1913,  c.  445,  §  1,  as  amended  by  St.  1914,  c.  70S,  §  6  [e])  Lemieux  v. 
Contractors'  Mut.  Liab.  Insur.  Co.,  223  ISIass.  346,  111  N.  E.  782 ;  In  re  Hun- 
newell,  220  Mass.  351,  107  N.  E.  934. 


§  189  workmen's  compensation  684 

to  possess  when  he  receives  the  full  value  of  the  right  he  does  pos- 
sess under  the  Act.^®  All  settlements  and  releases  for  compensation 
executed  between  employer  and  employe  in  Minnesota  must  be 
approved  by  a  judge  of  the  district  court  before  they  can  be  filed 
with  the  labor  commissioner."  It  has  been  held  in  Massachusetts 
that  the  signing  of  a  settlement  receipt  did  not  bar  the  employe  from 
asking  for  a  hearing  before  the  Committee  of  Arbitration  because 
of  its  refusal  to  reimburse  him  on  account  of  his  outlay  for  medical 
services.^* 

A  release  may  be  rescinded  for  mutual  mistake  of  law.  A  party 
who,  with  full  knowledge  of  the  ignorance  of  the  other  contracting 
party,  has  not  only  encouraged  that  ignorance,  but  has  knowingly 
deceived  and  misled  that  other  into  a  mistaken  conception  of  his 
legal  rights,  cannot  shield  himself  behind  the  doctrine  that  a  mere 
mistake  of  law  affords  no  ground  for  relief.^  ^ 

§  190.     Contracting  out 

A  common  provision  of  the  Compensation  Acts  that  any  agree- 
ment by  the  employe  to  waive  his  right  to  compensation  shall  be 
void  ®°  is  not  retroactive.®^ 

seEeed  v.  Zelinsky,  1  Cal.  I.  A.  C.  Dec.  496. 

57  (Wk.  Comp.  Act,  §  22 ;  Gen.  St.  1913,  §  8216)  Op.  Atty.  Gen.  on  Minn. 
Wk.  Comp.  Act,  Bui.  11,  p.  15. 

5  8  Ducy  V.  Ameiican  Mut.  Liab.  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  513 
(decision  of  Com.  of  Arb.). 

5  9  Carpenter  v.  Detroit  Forging  Co.  (Mich.)  157  N.  W.  374. 

60  See  text  of  various  Acts.    (\Vk.  Comp.  Law  N.  Y.  §  32.) 

A  contract  signed  by  an  employ§  before  going  to  work,  absolving  the  em- 
ployer from  all  obligations  resulting  from  any  accident  he  might  subsequent- 
ly meet,  is  not  binding,  as  the  contract  entered  into  between  the  employer, 
employe,  and  the  state  of  Illinois,  when  they  accepted  the  provisions  of  the 
Workmen's  Compensation  Act,  is  controlling,  and  all  previous  contracts  en- 

61  Laws  1913,  c.  174,  p.  312,  prohibiting  "contracting  out,"  is  inapplicable 
where  the  accident  happened  before  its  passage.  Blackford  v.  Green,  87 
N.  J.  Law,  359,  94  Atl.  401. 


685  COMPENSATION  §   191 

§  191.     Assignment  of  compensation  rights 

Compensation  rights  cannot  ordinarily  be  assigned  or  subjected 
to  the  payment  of  debts. ''^  Relative  to  this  prohibition  it  has  been 
said :  "The  exemption  of  awards  from  assignment  or  charge  is  nec- 
essary in  order  to  protect  the  injured  employe  and  his  dependents. 
If  the  claim  were  made  assignable,  he  could  sell  it  for  a  small  sum, 
and  thus  deprive  his  dependents  of  benefits  to  which  they  are  en- 
titled. The  compensation  also  is  made  exempt  from  his  debts  on 
the  same  principle  that  wages  are  now  exempt.  The  justice  and 
fairness  of  this  should  be  conceded  by  all."  ®^  Under  the  recognized 
rules  of  statutory  construction,'^*  a  provision  validating  an  assign- 

tered  into  are  merged.    Chicago  Savings  Bank  &  Trust  Co.  v.  Chicago  Rys. 
Co.,  Bulletin  No.  1,  111.,  p.  104. 

A  provision  in  the  lease  of  a  dredge,  whereby  the  owner  and  employer 
each  exempted  the  other  from  liability  for  the  other,  did  not  operate  to  re- 
lease the  employer  from  liability  for  injuries  to  the  owner  while  he  was  oper- 
ating a  gasoline  launch  as  employe.  In  re  Powely,  169  App.  Div.  170,  154 
N.  Y.  Supp.  426. 

6  2  See  text  of  various  Acts. 

The  right  to  compensation  from  the  state  insurance  fund  cannot  be  as- 
signed. (Wk.  Comp.  Act,  §  41)  In  re  Oscar  Berg,  vol.  1,  No.  7,  Bui.  Ohio 
Indus.  Com.  p.  102. 

63  (Wk.  Comp.  Act  Wash,  §  10)  Rulings  Wash.  Indus.  Insur.  Com.  1915, 
p.  20. 

6  4  "When  the  intention  can  be  collected  from  the  statute,  words  may  be 
modified,  altered,  or  supplied,  so  as  to  obviate  any  repugnancy  or  inconsist- 
ency with  such  intention."  Lewis'  Sutherland's  Statutory  Construction  (2d 
Ed.)  vol.  2,  §  347.  "The  intention  of  an  act  will  prevail  over  the  literal 
sense  of  its  terms."  Id.  §  348.  "The  presumption  is  that  the  lawmaker  has  a 
definite  purpose  in  every  enactment,  and  has  adapted  and  formulated  the 
subsidiary  provisions  in  harmony  with  that  purpose.  *  •  *  That  purpose 
is  an  implied  limitation  on  the  sense  of  general  terms."  Id.  §  369.  "Words 
or  clauses  may  be  enlarged  or  restricted  to  effectuate  the  intention  or  to 
harmonize  them  with  other  expressed  provision."  Id.  §  376.  "A  thing  which 
is  not  within  the  intent  and  spirit  of  a  statute  is  not  within  the  statute, 
though  within  the  letter."  Id.  §  379.  "The  real  intention,  when  accurately  as- 
certained, will  always  prevail  over  the  literal  sense  of  the  terms.  *  *  * 
Statutes  are  likewise  to  be  construed  in  reference  to  the  principles  of  the 


§  192  workmen's  compensation  686 

merit  of  the  workman's  cause  of  action  to  the  insurer  must  be  lim- 
ited to  its  special  purpose,  and  construed  as  impliedly  repealing  or 
modifying  the  existing  law  as  to  the  nontransferability  of  personal 
injury  claims  only  so  far  as  necessary  to  effectuate  such  purpose.^^ 

§  192.     Apportionment 

Apportionment  of  compensation  between  dependents  will  ordi- 
narily be  made  equitably  in  proportion  to  the  respective  contribu- 
tions made  by  deceased  for  their  support.®^  Surviving  brothers  and 
sisters,  who  are  not  dependent  upon  the  earnings  of  the  deceased 
workman,  are  not  entitled  to  a  share  of  the  compensation  along  with 
a  dependent  mother,  who  received  her  support  from  him.®'^  In  New 
Jersey,  the  trial  judge  need  not  apportion  compensation  between  a 
widow  and  child  of  a  deceased  employe,  where  such  apportionment 
is  not  specially  applied  for.««  The  provision  of  the  New  Jersey 
Act  relative  to  distribution  of  compensation  to  children  applies  only 
to  children  of  the  deceased  workman,  and  not  to  his  brothers  and 
sisters.^"  Where  a  deceased  workman  is  survived  by  a  reputed 
wife,  found  to  be  totally  dependent  on  him  and  a  member  of  his 
family,  and  by  his  legal  wife  and  a  minor  child,  for  whose  main- 
common  law;  for  it  is  not  to  be  presumed  that  the  Legislature  intended  to 
make  any  innovation  upon  the  common  law  further  than  the  case  absolutely 
required."     1  Kent's  Commentaries  (14th  Ed.)  462. 

6  5  (Wk.  Comp.  Law,  §  29)  United  States  F.  &  G.  Co.  v.  New  York  Rys.  Co., 
93  Misc.  Rep.  118,  156  N.  Y.  Supp.  615. 

6c  Where  a  minor  contributed  small  sums,  averaging  not  over  50  cents  a 
week,  to  his  father  for  tobacco,  money  and  groceries  amounting  to  .?5  a  week 
to  his  mother,  and  money  estimated  at  50  cents  a  week,  and  some  clothing, 
to  his  sister,  the  death  benefit  was  apportioned  at  the  rate  of  one-sixth  to 
the  father,  one-sixth  to  the  sister,  and  two-thirds  to  the  mother.  Anderson 
V.  American  Straw  Board  Co.,  1  Conn.  Comp.  Dec.  11  (affirmed  by  superior 
court  on  appeal). 

6  7  Matecny  v.  Vierling  Steel  Works,  187  111.  App.  448. 

6  8  Taylor  v.  Seabrook,  87  N.  J.  Law,  407,  94  Atl.  399. 

6  9  Conners  v.  Public  Service  Electric  Co.  (N.  J.  Sup.  1916)  97  Atl.  792. 


687  COMrENSATION  §   192 

tenance  he  was  legally  liable,  the  compensation  may,  in  the  dis- 
cretion given  the  California  Commission  by  a  provision  authorizing 
it  to  apportion  death  benefits  among  the  dependents  in  proportion  to 
their  respective  needs,  be  equally  divided  between  such  benefi- 
ciaries.'^" 

That  decedent  was  a  member  of  the  family  of  his  brother,  who 
was  partially  dependent  upon  him,  does  not  make  the  brother  a 
"next  of  kin,"  entitled  to  compensation  under  the  Massachusetts 
Act,  in  preference  to  decedent's  surviving  father/^  Under  the  Con- 
necticut Act,  where  the  deceased  workman  leaves  two  dependent 
daughters,  one  over  18  dependent  in  fact,  and  one  17  dependent 
both  presumptively  and  in  fact,  the  total  death  benefit  may  be 
awarded  to  the  latter  until  she  reaches  the  age  of  18,  and  thereafter 
be  divided  equally  between  the  sisters. '^- 

The  insurer  cannot  litigate  by  appeal  the  proportions  of  the  divi- 
sion of  a  death  benefit  after  a  decree  apportioning  same,  from  which 
the  dependents  themselves  do  not  appeal.'''^ 

The  word  "portions"  as  used  in  the  federal  Act,  refers  to  the  divi- 
sion of  the  compensation  among  the  claimants,  and  not  to  its 
division  into  weekly  or  monthly  payments,  and  the  Secretary  is  au- 
thorized to  direct  that  one  beneficiary  receive  a  larger  and  another 
a  smaller  portion;  his  authority  in  this  regard  may  even  justify 
his  direction  that  the  whole  compensation  be  paid  to  one  benefi- 
ciary, to  the  exclusion  of  the  others.'^* 

7  0  (Wk.  Comp.,  etc.,  Act  Cal.  §  19  [e])  Rossi  v.  Standard  Oil  Co.',  2  Cal. 
I.  A.  C.  Dec.  307. 

71  (St.  1911,  c.  751,  pt.  2,  §  6,  and  part  5,  §  2)  In  re  Kelly's  Case,  222 
Mass.  538,  111  N.  E.  395. 

7  2  Maher  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec.  82  (affirmed 
by  superior  court). 
As  to  payment  to  representatives  in  general,  see  §  79,  ante. 

73  In  re  Janes  (1914)  217  Mass.  192,  104  N.  E.  556. 

74  In  re  Brinkley,  Op.  Sol.  Dept.  of  L.  (1915)  603. 


^  193  workmen's  compensation  688 

ARTICLE  V 

TREATMENT  AND  FUNERAL  EXPENSE 
Division  I. — Expenses  of  Medical,   Surgical,   and  Hospital  Treatment 

Section 

193.  Rights,  duties,  and  liabilities  in  general. 

194.  Massachusetts. 

195.  Failure  or  neglect  of  employer — Procurement  of  services  and  treatment 

by  employ^. 

196.  Where  physician  is  furnished  by  employer. 

197.  Change  of  physician  or  service. 

198.  Expense  for  which  employer  is  liable. 

199.  Recovery  by  physician. 

200.  Services  of  nurse  or  member  of  the  family. 

Division  II. — Funeral  Expenses 

201.  Provisions  allowing  funeral  expenses. 


Division  I. — Expe^nses  ov  Medicai.,  Surgical,  and  Hospital 

Treatment 

§  193.     Rights,  duties,  and  liabilities  in  general 

The  common  legislative  requirement  that  the  employer  bear  the 
burden  of  reasonably  necessary  medical  and  surgical  treatment  of 
his  injured  employe  wsis  not  intended  as  a  charity  to  one,  or  as  a 
penalty  to  the  other,  but  as  the  recognition  of  the  economic  truth 
that  such  expense  is  a  legitimate  element  in  the  cost  of  production, 
and  should  be  placed  upon  the  product  as  directly  as  practicable, 
using  the  employer  as  the  first  necessary  step.  The  legislative  idea 
is  that  an  employer  is  so  specially  interested  in  his  injured  employe 
being  restored  as  soon  as  practicable  as  to  be  most  likely  to  provide 
proper  medical  and  surgical  treatment.'^"    Since  the  employer  must 

7  6  City  of  Milwaukee  v.  Miller,  154  Wis.  652,  144  N.  W.  1S8,  L.  R.  A.  1916A. 
1,  Ann.  Cas.  1915B,  847. 


689  COMPENSATION  §   193 

pay  the  cost,  he  is  given  the  privilege  of  selecting  the  physican  and 
services  requisite  to  proper  treatment. '^^  This  is  a  privilege,  how- 
ever, which  must  be  exercised  without  unnecessary  delay.^''  By 
necessary  implication  there  is  reserved  to  the  employer,  under  ordi- 

7  6  The  plain  purpose  of  this  section  is  to  impose  upon  the  insurer  the  duty 
of  providing  reasonable  medical  and  hospital  services  and  medicines  when 
they  are  needed.  Manifestly,  the  workman  is  not  permitted  generally  to  select 
his  own  physician  or  hospital,  but  should  accept  that  which  the  law  thus 
requires  to  be  provided  for  him.  (St.  1911,  c.  751,  pt.  2,  §  5)  In  re  Panasuk, 
217  Mass.  589,  105  N.  E.  368.  Where  services  or  supplies  of  the  character  in- 
dicated by  the  provision  requiring  that  the  employer  promptly  provide  for 
the  injured  employ^  "such  medical,  surgical  or  other  attendance  or  treatment, 
nurse  or  hospital  service,  medicine,  crutches  and  apparatus  as  may  be  re- 
quired or  be  requested  by  the  employe  during  the  sixty  days  after  the  injury," 
are  needed  or  are  reasonably  or  properly  requested  by  the  employe,  the  em- 
ployer must  provide  same,  using  his  own  judgment  and  exercising  his  own 
choice,  so  long  as  he  does  not  make  an  unreasonable  selection  as  to  the  person 
who  shall  render  such  services  and  as  to  the  nature  of  the  supplies,  and  it 
is  only  when  he  fails  to  provide  that  the  employg  may  do  so  at  the  employ- 
er's expense.  Where  the  employer  has  not  failed  in  his  duty  in  this  respect, 
the  employg  cannot  designate  the  particular  individual  who  shall  render  the 
required  services.  Keigher  v.  General  Electric  Co.,  158  N.  Y.  Supp.  939.  In- 
asmuch as  the  employer  or  his  insurance  carrier  must  pay  the  disability  in- 
demnity, if  the  disability  is  not  relieved,  and  must  pay  full  death  benefits 
or  permanent  disabilities,  in  addition  to  the  medical  and  surgical  charges,  if 
incompetent  physicians  or  hospitals  aggravate  the  injury,  the  statute  gives 
the  party  who  must  pay  the  cost  the  right  to  select  the  physician  and  hospi- 
tal. McNamara  v.  United  States  Fidelity  &  Guaranty  Co.,  1  Cal.  I.  A.  C. 
Dec.  138. 

7  7  Scott  V.  yEtna  Life  Ins.  Co.,  1  Cal.  I.  A.  C.  Dec.  343. 

Where  evidence  shows  an  unreasonable  delay  on  the  part  of  the  employer 
and  his  insurance  carrier  in  offering  medical  treatment  to  the  employe,  the 
latter  will  be  awarded  the  reasonable  cost  of  such  services  which  he  himself 
has  contracted  for.  De  Mott  v.  Stone  &  Webster  Construction  Co.,  1  Cal. 
I.  A.  C.  Dec.  187.  By  the  term  "seasonable"  the  law  means  "ia  due  season," 
"opportunely,"  "timely,"  which,  in  most  cases  of  physical  injury,  means 
forthwith,  inasmuch  as  delay  causes  danger  of  infection.  In  a  city  or  other 
populous  community,  an  insurance  carrier  or  employer  should  have  its  physi- 
cian in  charge  of  the  injured  employe,  if  not  in  time  to  render  first  aid,  at 
least  within  a  very  few  hours,  certainly  as  soon  as  it  is  necessary  to  change 
an  emergency  dressing.     Failure  to  do  this  forfeits  the  right  to  designate 

HoN.CoMP. — 44 


§  193  workmen's  compensation  690 

nary  circumstances,  reasonable  opportunity  to  exercise  the  privi- 
lege, and  the  right  of  the  employe  to  obtain  such  treatment,  or  for 

who  shall  furnish  medical  treatment.     Scott  v.   iEtna  Life   Insurance  Co., 
supra. 

Where  an  employer's  foreman  has  knowledge  of  the  injury  on  the  day  it 
happened,  Saturday,  but  no  steps  are  taken  by  the  defendants  to  furnish 
medical  attention  until  the  following  Monday,  and  the  injured  man  has,  in 
the  meantime,  secured  the  services  of  another  physician,  who  continues  to 
treat  him  until  his  cure,  the  defendants  must  pay  the  reasonable  value  of  the 
services  rendered  by  the  employe's  physician.  While  the  law  gives  the  em- 
ployer the  right  to  select  the  physician,  it  does  not  allow  him  to  sleep  upon 
that  right.  If  he  does  not  furnish  medical  attention  "seasonably,"  the  em- 
ploye may  secure  medical  attention  at  his  employer's  expense.  Simpson  v. 
Paraffine  Paint  Co.,  1  Cal.  I.  A.  C.  Dec.  76.  Where  an  employer  is  notified  at 
the  outset  of  the  serious  condition  of  his  employ^,  caused  by  an  infected 
wound,  and  the  insurance  carrier  offers  the  services  of  its  own  physician 
on  the  same  day,  Tuesday,  but,  the  physician  not  being  present  and  the  case 
urgent,  an  arrangement  is  made  to  meet  this  physician  later  in  the  afternoon, 
but  he  does  not  get  into  communication  with  the  employe  until  the  following 
Friday,  after  a  serious  operation  has  been  performed,  the  insurance  carrier 
has  not  seasonably  tendered  medital  treatment,  and  is  liable  for  the  reason- 
able value  of  the  treatment  procured  elsewhere.  Jameson  v.  Bush,  1  Cal.  I. 
A.  C.  Dec.  507.  Where  an  employe  sustains  a  fracture  and  is  taken  to  a  physi- 
cian by  his  employer,  who  later  calls  in  another  physician,  and  the  employ^, 
without  further  instructions  from  his  employer,  retains  the  second  physician 
and  dismisses  the  first,  and  where  instructions  as  to  medical  treatment  are 
not  furnished  by  the  insurance  carrier  for  nearly  a  week,  and  not  until  aft- 
er the  employe  has  completed  final  arrangements  for  his  treatment  and  is 
about  to  undei'go  or  has  just  undergone  an  operation,  the  tender  of  medical 
treatment  by  the  insurance  carrier  is  not  made  seasonably,  and  it  is  liable 
for  the  reasonable  value  of  treatment  rendered  to  the  employ^  by  a  physician 
of  his  own  choice.  Hotchkiss  v.  Boyer,  2  Cal.  I.  A.  C.  Dec.  51.  Where  the 
employer  or  insurance  carrier  is  notified  at  once  of  the  accident  and  instructs 
its  physician  to  treat  the  injured  employe,  and  the  physician,  after  making 
a  superficial  examination,  neglects  the  patient  for  five  days,  though  requested 
to  call,  and  the  employ^  in  the  meantime  secures  other  medical  attention,  the 
employer  or  his  insurance  cari-ier  has  not  seasonably  furnished  medical  at- 
tention within  the  meaning  of  the  Act,  and  is  therefore  liable  for  the  rea- 
sonable value  of  services  contracted  for  by  the  employe.  Bailey  v.  Wheeler 
Co.,  1  Cal.  I.  A.  C.  Dec.  142.  Where  a  series  of  delays  of  the  employer  and 
insurance  carrier  to  provide  medical  treatment  occurred,  during  which  time 
the  applicant  went  to  her  own  physician,  and  then,  after  a  mistaken  diagnosis 
by  the  insurer's  physician,  she  again  went  to  her  own  physician  and  received 


691  COMPENSATION  §   193 

the  same  to  be  obtained  in  his  behalf,  at  the  expense  of  the  em- 
ployer, is  contingent  upon  such  opportunity  having  been  ac- 
corded,^^   and   proper  notice  of   the   injury   having  been   given, ^^ 

necessary  treatment,  the  defendants  are  chargeable  with  all  such  treatment 
received.  Allard  v.  Browne,  2  Cal.  I.  A.  C.  Dec.  489.  Where  an  employs  ac- 
cidentally sustains  a  hernia  which  is  irreducible,  and  immediate  operation 
is  therefore  required,  and  notice  is  given  to  the  insurance  carrier  the  day 
of  the  happening  of  the  accident,  and  an  operation  is  performed  by  the  em- 
ploye's physician  within  two  or  three  days  thereafter,  the  insurer  not  hav- 
ing tendered  medical  treatment  of  its  own  selection  within  such  period,  it  is 
liable  for  the  reasonable  cost  of  the  operation,  for  the  reason  that,  in  view 
of  the  urgency  of  the  case,  it  did  not  seasonably  tender  treatment.  Viglione 
V.  Montgomery  Garage  Co.,  2  Cal,  I.  A.  C.  Dec.  87. 

7  8  City  of  Milwaukee  v.  Miller,  154  Wis.  652,  144  N.  W.  188,  L.  R.  A.  1916A, 
1,  Ann.  Cas.  1915B,  847.  The  privilege  accorded  the  employer  requires  as  an 
incident  reasonable  time  to  exercise  it  after  notice  of  the  need  therefor. 
Competency  of  an  injured  employ^  to  procure  medical  and  surgical  treat 
ment,  or  for  such  to  be  procured  in  his  behalf,  at  the  expense  of  the  employer, 
under  the  Workmen's  Compensation  Act,  exists  for  the  reasonable  time  after 
the  injury  required  for  such  employ^  to  afford  the  employer  opportunity  to 
exercise  his  privilege;  it  is  then  suspended  if  the  employer  exercises  such 
privilege,  but  revives  and  relates  back  to  the  time  of  the  suspension,  if  neces- 
sary, if  the  employer  unreasonably  neglects  or  refuses  to  exercise  such  privi- 
lege.   Id. 

7  9  The  law  does  not  cast  upon  employers  the  duty  of  active  vigilance  to  dis- 
cover cases  of  personal  injury  to  their  employes,  but  casts  upon  the  latter 
such  vigilance  as  they  can  reasonably  exercise  to  bring  such  injuries  to  the 
attention  of  employers,  with  their  need  and  desire  for  medical  and  surgical 
treatment  to  be  provided.  City  of  Milwaukee  v.  Miller,  154  Wis.  652,  144 
N.  W.  188,  L.  R.  A.  1916A,  1,  Ann.  Cas.  1915B,  847.  Where  an  employe  is  dere- 
lict in  not  reporting  the  fact  of  injury  to  his  employer  in  time  to  give  the  lat- 
ter opportunity  to  select  the  surgeon  to  treat  him,  no  award  of  cost  of  medical 
and  surgical  care  will  be  made.  Jenkins  v.  Pieratt,  1  Cal.  I.  A.  C.  Dec.  114. 
Where  an  employe  receives  a  slight  injury,  and  does  not  notify  the  employer 
until  after  he  has  procured  all  necessaiy  medical  treatment  himself,  and  the 
employer,  not  knowing  of  the  happening  of  any  accident,  did  not  have  oppor- 
tunity to  furnish  medical  treatment  of  his  own  selection,  then  the  employer  is 
not  liable  for  the  reasonable  cost  of  medical  treatment  secured  by  the  injured 
employe.     Morrish  v.  Brookmiller,  2  Cal.  I.  A.  C.  Dec.  76. 

Where  an  injured  em  ploy  6  notifies  his  employer  that  his  hand  has  been 
injured,  but  omits  to  inform  the  employer  of  the  cause  of  the  injury,  or  to 
connect  it  with  the  employment,  or  with  any  accident,  and  no  request  is  made 


§  193  workmen's  compensation  692 

except  where  the  employer  has  actual  knowledge  dispensing  with 
the  necessity  of  such  notice.®"     But  this  does  not  militate  against 

for  medical  treatment,  the  employer  is  not  given  notice  to  supply  medical  serv- 
ices, and  is  not  liable  for  the  expenses  thereof.  If  he  then,  after  infection 
setting  in,  himself  employs  a  physician  and  nurse  at  an  exorbitant  expense, 
and  the  employer,  if  he  had  been  notified,  could  have  secured  the  same  or  bet- 
ter treatment  at  a  reasonable  expense,  and  prompt  medical  attention  would  have 
prevented  the  disability  which  followed  the  infection,  the  employer  has  been 
prejudiced  by  the  failure  to  give  notice,  and  is  not  liable  for  the  expenses  in- 
curred. Himes  v.  Powers  Investment  Co.,  2  Cal.  I.  A.  C.  Dec.  1035.  Where 
neither  employer  nor  employ^  are  acquainted  with  the  provision  of  the  Act, 
and  an  omployg  reports  very  informally  to  the  employer  that  he  has  received 
an  accidental  injury,  neither  party  realizing  the  importance  of  such  notice, 
nor  appreciating  the  responsibility  cast  upon  the  employer  thereby,  never- 
theless, such  informal  statement  is  sufficient  to  give  the  notice  required  by 
law,  and  make  the  employer  liable  for  the  reasonable  value  of  medical  and 
surgical  services  furnished  the  employ^  on  accoimt  of  the  injury.  Conner 
V.  Acme  Cement  &  Plaster  Co.,  1  Cal.  I.  A.  C.  Dec.  143. 

80  Gardiner  v.  State  of  Cal.  Printing  Office,  1  Cal.  I.  A.  C.  Dec.  21. 

The  only  burden  placed  upon  the  injured  employ^  is  to  let  his  employer, 
or  the  employer's  superintendent  or  other  person  in  authority,  know  that  he 
has  been  injured.  Knowledge  of  the  fact  of  injury  on  the  part  of  the  em- 
ployer or  his  subordinates  constitutes  all  the  opportunity  to  designate  and 
furnish  the  necessary  medical  and  surgical  treatment  which  the  employer 
needs  in  the  contemplation  of  the  law.  Scott  v.  iEtna  Life  Insurance  Co., 
1  Cal.  I.  A.  C.  Dec.  343.  An  employer,  having  actual  knowledge  of  the  acci- 
dental injury  of  his  employe,  is  bound  to  furnish  necessary  medical  and 
surgical  attendance,  and  upon  his  neglect  to  do  so  is  liable  for  the  reasonable 
charges  incurred  by  the  injured  employe  in  that  behalf  (Coleman  v.  Guilfoy 
Cornice  Works,  1  Cal.  I.  A.  C.  Dec.  31),  though  all  parties  are  under  the  im- 
pression that  the  injury  is  slight  and  will  not  amount  to  anything  (Larson 
V.  Holbrook,  McGuire  &  Cohen,  2  Cal.  I.  A.  C.  Dec.  105). 

Where  an  employ^  sustains  an  accident  and  tells  a  fellow  employ^  to  notify 
the  captain  of  the  ship  upon  which  he  is  working,  and  the  fellow  employe 
testifies  that  he  told  the  captain  that  the  applicant  got  hurt  and  wanted  a 
permit  to  go  to  the  Marine  Hospital,  and  both  applicant  and  the  captain  were 
ignorant  of  their  rights  and  duties  under  the  Act,  and  the  captain  testifies 
that  no  report  of  the  injury  was  made  to  him,  but  that  he  understood  the  ap- 
plicant was  sick  with  rheumatism,  such  evidence  establishes  sufficient  notice 
to  the  employer  to  render  him  liable  for  medical  and  surgical  treatment. 
Connolly  v.  California  Salt  Co..  2  Cal.  I.  A.  C.  Dec.  115. 

In  Ezykowski  v.  F.  B.  Dashiel  Co.,  1  Conn.  Comp.   Dec.  236,  where  the 


693  COMPENSATION  §  193 

the  employe's  right  to  obtain  medical  and  surgical  treatment  at  the 
expense  of  his  employer  in  the  interim  between  the  happening  of 
the  injury  and  time  for  notice  to  the  employer  of  the  employe's 
needs,"  subject  to  the  right  of  the  employer  or  insurer  to  change 
physicians  at  the  close  of  the  emergency  treatment.®^  The  right  to 
be  supplied  with  medical  services  is  independent  of  the  right  to 
disability  compensation/^  and  the  forfeiture  of  the  right  to  med- 

claimant  was  not  entitled  to  medical  expense,  because  of  not  giving  notice 
and  of  neglect  in  securing  treatment,  but  later  suffered  a  new  injury,  and  the 
employers  had  knowledge  of  the  second  injury,  medical  expenses  were  allow- 
ed for  30  days  after  the  second  injury. 

Where  an  employ^  was  injured,  and  reported  the  injury  to  the  foreman  at 
8  o'clock  the  following  morning,  and  was  advised  by  the  foreman  to  see  a  doc- 
tor, the  employer  was  liable  for  medical  bills  arising  out  of  the  accident,  not 
to  exceed  $200.  Eide  v.  Horn,  Bulletin  No.  1,  111.,  p.  44;  City  of  Milwaukee 
V.  Miller,  154  Wis.  652,  144  N.  W.  188,  L.  K  A.  1916A,  1,  Ann.  Cas.  1915B, 
847. 

81  Where  emergency  treatment  is  imperative,  as  where  a  skull  is  fractured, 
the  employ^  is  entitled  to  the  expense  incurred,  even  though  the  employer 
had  no  opportunity  to  tender  treatment  by  his  own  physician.  Travelers' 
Insur.  Co.  v.  Spaulding  &  Bros.,  1  Cal.  I.  A.  C.  Dec.  575.  The  Compensation 
Act  contemplates  that  adequate  treatment  be  provided  by  the  employer.  The 
most  important  treatment  at  the  time  of  the  injury  is  to  ascertain  the  nature 
and  extent  of  the  injury,  and  where  a  fracture  is  involved  this  can  seldom 
be  done  with  adequate  appliances,  such  as  facilities  for  taking  X-ray  photo- 
graphs, and  an  employe  is  justified  in  going  at  once  to  where  a  correct  diag- 
nosis of  his  case  can  be  made.  Miller  v.  Mtna.  Springs  Co.,  2  Cal.  I.  A.  C. 
Dec.  781.  An  injured  employe  is  justified  in  seeking  emergency  treatment  on 
the  day  of  his  injury  from  any  physician,  unless  specifically  directed  by  the 
employer  or  insurance  carrier,  prior  to  securing  such  treatment,  as  to  where 
to  go.  The  cost  of  such  emergency  treatment  is  a  proper  charge  against  the 
employer  or  insurer.  Where,  however,  medical  treatment  is  tendered  by  them 
in  seasonable  time  after  the  first  aid,  the  injured  employe  must  discontinue 
treatment  by  the  physician  called  in  and  accept  the  treatment  tendered  by 
the  employer,  or  else  bear  the  cost  of  the  treatment  himself.  Robitson  v. 
Panama  Fruit  Co.,  1  Cal.  I.  A.  C.  Dec.  385. 

8  2  See  §  195,  post. 

8  3  Casanegri  v.  Madera  Sugar  Pine  Co.,  1  Cal.  I.  A.  C.  Dec.  589. 
In  Pelham  v,  Burstein,  1  Conn.  Comp.  Dec.  49,  where  there  were  no  sur- 
viving dependents,  an  award  was  made  for  medical  expenses. 


§  193  workmen's  compensation  694 

ical  services  does  not  affect  the  right  to  such  other  compensation.^* 
Where  the  employer  and  employe,  both  knowing-  that  the  status 
of  the  practitioner  provided  is  not  that  of  a  regular  physician  and 
surgeon,  but  that  he  has  had  considerable  practice  as  a  bonesetter, 
agree  in  selecting  him,  they  are  estopped  from  later  making  the 
point  that  he  is  not  a  regularly  educated  physician. ^^ 

Under  the  California  Act,  in  ordinary  cases  of  varicose  ulcers, 
due  to  injury,  the  employe  will  be  allowed  medical  treatment  and 
appliances  to  cure  and  relieve  from  the  effects  of  the  ulcer,  but 
will  be  allowed  no  disability  indemnity.  In  cases  of  a  more  serious 
nature  an  award  will  be  made  for  the  cost  of  a  radical  operation 
to  effect  a  permanent  cure,  where  such  an  operation  is  deemed 
necessary  by  a  competent  surgeon,  together  with  a  disability  in- 
demnity while  the  employe  is  incapacitated  as  a  result  of  the 
operation,  but  nothing  further.-^''  Under  a  provision  of  the  Kansas 
Act  which  contemplates  no  compensation  for  medical  attendance 
except  where  the  workman  dies,  a  deduction  should  be  allowed  for 
an  amount  paid  by  the  defendant  to  a  physician  for  attending  the 
employe.^^ 

A  policy  of  insurance  cannot  be  lawfully  issued  which  eliminates 
the  obligation  of  the  insurance  company  to  indemnify  an  employer 
who  has  performed  the  statutory  duty  to  furnish  medical,  surgical, 
or  hospital  service.  Nor  can  such  insurance  company,  after  having 
issued  such  a  policy,  lawfully  enter  into  any  collateral  contract 
or  agreement  which  in  any  way  restricts  or  modifies  the  obligations 
assumed  by  it  by  the  terms  of  the  policy.^*     Employes  of  Ohio  em- 

84  1(1.;  Cochran  v.  Whiting  Wrecking  Co.,  1  Cal.  I.  A.  C.  Dec.  186;  Rup- 
recht  V.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  864. 

8  5  Hodge  V.  Hoffman,  1  Conn.  Comp.  Dec.  322. 

8  6  Keen  v.  Scott  Co.,  2  Cal.  I.  A.  C.  Dec.  533. 

8  7  (Wk.  Comp.  Act,  §  12,  subd.  e,  and  section  11,  subd.  a  [3],  as  amended 
by  Laws  1913,  c.  216,  §  5)  Cain  v.  National  Zinc  Co.,  94  Kan.  679,  148  Pac. 
251  (on  rehearing ;    former  opinion  in  146  Pac.  1165). 

8  8  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  12.     See  §  185,  ante. 


695  COMPENSATION  §    194 

ployers  who  have  elected  to  pay  compensation  direct  are  entitled  to 
receive  the  same  amounts  to  cover  expenses  for  medical  attendance 
as  employes  of  those  who  have  contributed  to  the  state  insurance 
fund  are  entitled  to  receive  from  the  fund.^^  If  a  California  em- 
ployer is  insured,  his  insurance  carrier  should  inform  him  in  ad- 
vance exactly  what  he  is  to  do  in  case  of  accident  with  reference  to 
medical  and  hospital  treatment.  If  he  fails  to  follow  the  instruc- 
tions so  given,  an  issue  may  arise  between  the  insurer  and  insured 
under  the  contract  of  insurance,  but  the  rights  of  the  injured  em- 
ploye are  not  jeopardized  thereby.®*'  A  provision  of  the  Oregon 
Act  authorizing  the  Commission  to  provide  hospital  accommoda- 
tions for  workmen  "who  are  entitled  to  benefits  hereunder"  does 
not  apply  to  workmen  injured  before  the  approval  of  the  Act.''^ 
Where  the  employer  is  insured,  the  insurance  company  must  reim- 
burse him  for  the  pecuniary  loss  sustained  in  case  he  himself  has 
furnished  services  at  his  own  expense,  or  make  good  the  amount 
paid  by  the  employer  to  his  employe  in  a  case  where  the  employer 
has  failed  to  furnish  the  services,  and  the  employe  has  provided  such 
services  at  the  employer's  expense.  If  the  services  have  been  sea- 
sonably furnished  by  the  employer,  the  injured  employe  cannot,  of 
course,  recover  anything  for  such  items,  either  from  the  employer 
or  the  insurer.''^ 

§  194.    Massachusetts 

The  obligation  to  furnish  medicinal  and  hospital  services  for  the 
first  two  weeks  after  the  injury  is  imposed  by  the  express  words 

89  Robison  v.  Newark  Reflector  Co.,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p. 
167. 

90  Scott  V.  ^tna  Life  Insurance  Co.,  1  Cal.  I.  A.  C  Dec.  3-13. 

91  Under  Const,  art.  4,  §  1,  providing  that  any  Act  referred  to  the  people 
shall  take  effect  and  become  a  law  when  it  is  approved  by  a  majority  of  the 
votes  cast  and  not  otherwise,  Workmen's  Compensation  Act,  §  23,  authoriz- 
ing the  Commission  to  provide  hospital  accommodations,  did  not  apply  to  a 

92  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  14. 


§  194  workmen's  compensation  696 

of  the  Massachusetts  Act.  This  duty  must  be  performed,  or  rea- 
sonable efforts  made  to  that  end,  before  the  statutory  obligation 
is  satisfied.®^  "Furnish"  means  to  provide  or  supply.  Its  signifi- 
cance may  vary  with  the  connection  in  which  it  is  found.  As  said 
by  the  Supreme  Judicial  Court,  it  is  used  here  to  describe  a  duty 
placed  on  the  insurer  respecting  a  workman  who  receives  "a  per- 
sonal injury  arising  out  of  and  in  the  course  of  his  employment." 
Such  a  person  manifestly  is  presumed  by  the  Act  to  be  under  more 
or  less  physical  disability,  and  hence  not  in  his  normal  condition  of 
ability  to  look  out  for  himself.  The  word  "furnish"  in  such  connec- 
tion imports  something  more  than  a  passive  willingness  to  respond 
to  a  demand.  It  implies  some  degree  of  active  effort  to  bring  to  the 
injured  person  the  required  humanitarian  relief.  Reasonably  suf- 
ficient provision  for  rendering"  the  required  services  must,  of  course, 
be  made.  Then  either  express  notice  must  be  given  to  the  employe, 
or  there  must  be  such  publication  or  posting  of  the  information  as 
warrants  the  fair  inference  that  knowledge  had  reached  the  em- 
ploye. If  the  insurer  has  made  adequate  arrangements  for  the  care 
of  those  to  whom  the  duty  is  owed  in  the  event  of  injury,  and  then 
by  conspicuous  notices  posted  in  places  frequented  by  the  employe, 
in  a  language  capable  of  being  read  by  him,  has  given  full  informa- 
tion of  that  fact,  and  directions  as  to  the  steps  to  be  taken  by  the 
injured  employe  in  order  to  avail  himself  of  such  arrangements, 
a  very  different  question  is  presented  than  that  which  is  presented 
when  this  is  not  done.  This  might  go  a  long  way  toward  proving 
compliance  with  the  requirements  of  the  statute.  But  where  notice, 
though  posted  in  front  of  the  place  where  the  employe  works,  is  not 
such  as  to  challenge  his  attention,  he  being  an  illiterate  foreigner, 
and  the  notice  being  in  the  English  language,  it  is  insufficient, 
though  it  would  have  been  sufficient  if  he  had  been  able  to  read  the 


workman  injured  before  approval  of  the  Act  at  a  referendum  election  on  No- 
vember 4,  1913.     Salem  Hospital  v.  Olcott,  67  Or.  44S,  136  Pac.  341. 

» 3  In  re  Panasuk,  217  Mass.  589,  105  N.  E.  368. 


697  COMPENSATION  §  195 

English  language.  The  insurer  has  readily  accessible  means  of  as- 
certaining the  nationality  of  employes  insured  by  it  and  their  degree 
of  intelligence.  If  among  them  are  those  who  cannot  read  or  speak 
the  English  language,  this  circumstance  requires  greater  effort  on 
its  part  in  order  to  comply  with  the  statute.®* 

§  195.     Failure  or  neglect  of  employer — Procurement  of  services 
and  treatment  by  employe 

The  duty  of  employers  to  furnish  their  own  surgeon  is  a  correl- 
ative of  their  right  to  do  so.''^  The  employer's  failure  to  promptly 
provide  proper  medical  or  surgical  treatment  renders  him  liable  for 
the  reasonable  value  of  such  services  procured  by  the  employe,®*^ 

84  Id. 

95  Vaughn  v.  American  Coal  Co.,  1  Conn.  Comp.  Dec.  617. 

9  6  Where  the  employer  and  insurer  neglect  to  provide  surgical  treatment 
reasonably  required,  and  the  injured  employ^  procures  such  treatment,  his 
claim  therefor  should  be  allowed.  (Wk.  Comp.  Act,  §§  15a,  34,  subd.  2)  Mass. 
Bonding  &  Insur.  Co.  v.  Tillsbury,  170  Cal.  767,  151  Pac.  419.  If  an  employe 
who  has  elected  to  come  under  part  2  is  injured  while  working  for  an  em- 
ployer also  under  part  2,  it  is  the  duty  of  the  employer  to  furnish  such  serv- 
ices (those  specified  in  section  18  of  the  Act)  as  may  be  reasonably  required 
at  the  time  of  the  injury,  and  thereafter  during  the  disability  of  the  injured 
employe,  but  not  exceeding  90  days.  If  the  employer  fails  to  furnish  the  in- 
jured employ^  with  such  services,  the  employg  can  procure  the  same  and  re- 
cover the  value  thereof  from  his  employer,  not  exceeding,  however,  $100,  or 
in  special  cases  $200.  Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  14. 
Where  the  employer  has  notice  or  reason  to  believe  that  medical  and  surgical 
treatment  is  necessary,  and  does  not  seasonably  offer  the  same,  he  will  be 
liable  for  the  expenses  of  such  treatment  necessarily  incurred  by  the  injured 
employs  within  90  days  of  the  accident.  Peres  v.  Wand,  1  Cal.  I.  A.  C.  Dec. 
607.  The  law  places  the  obligation  upon  the  employer  to  provide  necessary 
medical  and  surgical  attendance,  and  knowledge  of  the  accidental  injury 
of  an  employe  and  the  reasonable  opportunity  given  to  provide  the  requisite 
treatment  are  sufficient  to  charge  the  employer,  neglecting  to  provide  it,  with 
the  reasonable  expense  incurred  by  the  employ^  in  that  behalf.  Gardiner 
v.  State  of  Cal.  Printing  Office,  1  Cal.  I.  A.  C.  Dec.  21.  Where  an  employer, 
knowing  of  an  injury  to  an  employe  at  the  time  it  was  received,  but  believing 
it  to  be  caused  by  disease,  and  not  by  accident,  fails  to  provide  medical  treat- 


§  195  workmen's  compensation  698 

provided  the  employe's  conduct  in  respect  to  reporting  his  injury 
and  related  matters  has  not  been  unreasonable,  in  view  of  his  in- 

ment  or  to  notify  his  insurance  carrier,  and  it  is  found  later  ttiat  the  injury 
was  caused  by  accident,  the  employ^  is  entitled  to  have  paid  by  the  insurance 
carrier  the  reasonable  value  of  medical  service  and  hospital  treatment  fur- 
nished to  her  by  physicians  of  her  own  choice.  Loustalet  v.  Metropolitan 
Laundry  Co.,  1  Cal.  I.  A.  C.  Dec.  318. 

Where  an  employer  did  not  furnish  any  medical  service  to  the  injured  em- 
ploye, who  obtained  it  for  himself,  the  workman  was  entitled  to  reimburse- 
ment to  the  amount  of  such  services  made  necessary  by  the  injury.  Ducy  v. 
American  Mut.  Liab.  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  513  (decision  of 
Com.  of  Arb.).  A  foreigner,  who  was  unable  to  read,  write,  or  imderstand 
the  English  language,  received  a  personal  injury,  and  reported  it  to  his  fore- 
man. No  information  was  given  him  as  to  his  rights  with  regard  to  medical 
attendance,  nor  was  any  efifort  or  offer  of  medical  attendance  made  by  his 
employer,  or  any  representative  of  the  employer  or  insurer.  It  appeared  in 
evidence  that  a  certain  typewritten  notice  in  English  was  posted  near  the 
place  where  the  employe  performed  his  work.  He  afterwards  called  in  a 
physician  of  his  own  selection,  and  the  insurer  declined  to  pay  the  bill,  and 
also  asked  for  a  ruling  that  the  Committee  of  Arbitration  had  no  jurisdic- 
tion over  a  dispute  concerning  the  nonpayment  of  a  bill  for  medical  services. 
It  was  held  that  the  insurer  was  required  to  pay  the  physician's  bill.  Pana- 
suk  V.  American  Mut.  Liab.  Insur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  338  (deci- 
sion of  Com.  of  Arb.,  affirmed  by  Indus.  Ace.  Board,  also  by  Sup.  Jud.  Ct., 
217  Mass.  5S9,  105  N.  E.  368).  The  employ§  received  a  serious  injury,  but  no 
attempt  was  made  by  either  the  insurer  or  employer  to  furnish  medical  at- 
tendance of  any  kind,  though  the  employe  was  sent  home  in  a  carriage  sup- 
plied by  the  employer,  and  nothing  was  said  to  her  about  medical  attendance. 
Upon  her  arrival  home  she  sent  for  a  physician,  a  specialist  in  injuries  such 
as  she  had  sustained.  He  gave  her  skillful  and  helpful  treatment,  and  present- 
ed a  reasonable  bill  for  the  services  rendered.  The  Committee  of  Arbitration 
held  that  the  insurer  did  not  furnish  medical  attendance,  and  that  he  must  pay 
the  bill  of  the  physician.  Flanagan  v.  American  Mut.  Liability  Insur.  Co., 
2  Mass.  Wk.  Comp.  Cases,  441  (decision  of  Com.  of  Arb.,  affirmed  by  Indus. 
Ace.  Bd.). 

In  Pampuro  v.  Murray  Bros.,  1  Conn.  Comp.  Dec.  674,  where  the  employer's 
physician,  being  called  twice  by  the  employg  because  the  injured  member 
he  had  been  treating  had  become  swollen,  refused  to  attend,  saying  it  was  un- 
necessary, and  the  employ^  then  procured  his  own  physician,  without  any  fur- 
ther notification  to  his  employer,  the  employer  was  held  liable  for  the  expense 
of  the  employe's  physician.  In  Vaughn  v.  American  Coal  Co.,  1  Conn.  Corap. 
Dec.  617,  it  was  held  that  where  the  employer  was  tardy  in  providing  a  phy- 
sician for  a  serious  case,  and  then  provided  a  physician  for  one  occasion  only, 


699  COMPENSATION  §   195 

telligence  and  other  circumstances  of  the  particular  case.^^  The 
employer  must,  upon  the  happening  of  an  accident,  at  once  instruct 
the  employe  regarding  the  medical  and  surgical  treatment  to  be  fur- 
allowing  the  employe  to  remain  in  ignorance  of  his  rights  and  duties,  and  on 
finding  that  another  physician  had  been  engaged,  and  being  notified  that  he 
would  drop  the  case  if  they  so  required,  declined  to  disturb  the  situation, 
the  employer  was  liable  for  the  expense  incurred.  In  Coller  v.  Donohue,  1 
Conn.  Comp.  Dec,  654,  where  the  employer  knew  that  the  employg  had  been 
hurt,  but  took  no  steps  to  provide  a  physician,  he  was  held  liable  for  medical 
expense  incurred  by  him.  Where  the  employers  did  not  furnish  the  necessary 
medical,  surgical,  and  hospital  treatment,  taking  the  position  that  the  work- 
man was  not  under  the  Act  at  the  time  of  the  accident,  such  action  was  neg- 
lect and  refusal  such  as  renders  them  liable  for  the  expense  incurred  by  the 
employe.     Vojacek  v.  Schlaefer,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  8. 

Competent  physician.  In  Keed  v.  Orient  Music  Co.,  1  Conn.  Comp.  Dec.  36, 
it  was  held  that  a  chiropractor  was  not  a  competent  physician  for  the  employ- 
er to  provide  to  care  for  his  employes.  Where  he  furnished  a  chiropractor, 
who  after  three  treatments  discharged  the  employg,  telling  him  he  was  able 
to  work,  and  the  employe  continued  to  receive  treatment  from  his  own  phy- 
sician, the  employer  is  liable  for  the  reasonable  cost  thereof.  In  this  case 
Commissioner  Chandler  said:  "The  notion  of  competency,  when  embodied  in 
a  legislative  act,  connotes  conformity  to  some  prevailing  standard.  *  *  * 
There  are  numerous  schools  and  cults  enjoying  limited  patronage  and  making 
divers  claims  of  ability  to  alleviate  pain  and  cure  disease,  whose  merits  it  is  not 
necessary  for  me  to  consider.  *  *  *  When  *  *  *  the  employer,  operating  under 
this  statute  undertakes  to  provide  an  exponent  of  any  such  school  or  cult  as 
'competent,'  and  the  question  of  competency  has  to  be  passed  upon  by  the  Com- 
missioner, the  measure  of  competency  then  becomes  the  prevailing  standards  of 
society,  not  the  judgment  or  convictions  of  the  [employer]  however  sincerely 
or  disinterestedly  exercised.  *  *  *  While  it  is  not  without  the  limits  of 
possibility  that  some  person  or  group  of  persons,  either  by  reasoning  on  theo- 
retical grounds,  or  by  experimentation,  or  even  accident,  might  discover  a 
new  and  better  method  than  that  generally  practiced  and  taught,  such  a 
contingency  is  highly  improbable,  and  the  employer  under  this  Act  who  pro- 
vides a  practitioner  of  any  such  unusual  method,  contrary  to  the  prevailing 
standards  of  society  and  the  preference  and  consent  of  the  injured  employe, 
fails  to  conform  to  the  provisions  of  section  7  of  part  B  of  the  Act." 

97  In  Philp  v.  International  Silver  Co.,  1  Conn.  Comp.  Dec.  448,  where  the 
employer  put  notices  containing  warning  against  danger  of  blood  poisoning 
from  a  scratch  and  directing  workmen  to  report  at  once,  the  notices  being 
printed  in  English,  in  the  pay  envelopes,  and  a  Greek  workman,  unable  to 
read,  speak,  or  understand  English,  did  not  go  to  a  doctor  until  two  or  three 


§  195  workmen's  compensation  700 

nished.  He  must  specifically  instruct  what  to  do  and  to  whom  to 
report.  If  the  employe  is  not  so  instructed,  and  secures  treatment 
on  his  own  behalf,  the  employer  is  liable  for  the  reasonable  value  of 
such  treatment,  even  though  he  was  ready  and  desirous  of  furnish- 
ing medical  aid  according  to  his  own  plans.^^  Wherever  a  large 
employer  has  provided  no  adequate  hospital  facilities  for  serious 
cases,  the  California  Commission  will  sanction  the  taking  of  em- 
ployes so  injured  out  of  the  hands  of  the  employer's  physician  and 
placing  them  in  a  proper  hospital  and  under  the  care  of  a  proper 
physician.^**     A  definite  offer  is  required  of  the  employer.^     If  he 

daj's  after  the  injury,  and,  aside  from  showing  his  finger  to  the  foreman,  did 
not  report  the  injury  for  some  time,  it  was  held,  in  view  of  his  lack  of  intelli- 
gence, his  conduct  was  not  unreasonable,  and  that  the  employer  was  liable 
for  medical  expenses.  In  Forte  v.  Waterbury  Mfg.  Co.,  1  Conn.  Conip.  Dec. 
685,  where,  though  the  employer  maintained  an  emergency  hospital,  it  was 
not  shown  that  any  rules  had  been  passed  or  brought  to  the  attention  of  the 
workmen  requiring  report  of  injury  to  such  hospital,  and  an  illiterate  for- 
eigner reported  his  injury  to  his  foreman  the  day  after,  and  that  he  was  re- 
ceiving medical  attention  therefor,  but  no  offer  of  medical  services  was  made 
to  the  employe,  nor  did  the  foreman  report  the  injury  to  the  proper  officers, 
it  was  held  that  the  employ^  had  given  sufficient  notice,  and  his  medical  ex- 
pense was  awarded.  In  Reese  v.  Yale  &  Towne  Mfg.  Co.,  1  Conn.  Comp. 
Dec.  154,  it  was  held  that  where  a  workman  told  his  foreman  of  an  injury 
to  his  foot  immediately,  and  on  going  to  his  employer's  emergency  room  and 
seeing  the  shades  drawn  and  the  door  closed,  supposed  the  room  was  closed 
because  it  was  a  holiday  and  only  a  few  of  the  men  were  working,  and  then 
went  home,  and  summoned  his  own  physician  that  night,  he  was  justified  in 
so  doing,  and  the  employer  was  held  liable  for  his  medical  expense. 

9  8Deneny  v.  Panama-Pacific  International  Exposition  Co.,  1  Cal.  I.  A.  C. 
Dec.  109. 

8  9  Campbell  v.  L.  E.  White  Limiber  Co.,  4  Cal.  I.  A.  C.  Dec.  33. 

1  Where  an  employer  does  not  definitely  or  clearly  notify  an  injured  em- 
ploy§,  at  a  time  when  the  employ^  is  mentally  competent  to  make  decisions, 
that  he  would  furnish  medical  and  hospital  service  free  of  expense  to  the  em- 
ployg,  and  it  does  not  appear  that  the  em  ploy  6  knowingly  rejected  any  such 
offer,  the  employer  is  liable  for  the  expense  of  medical  and  hospital  treatment 
incurred  by  the  employ^.  Trueblood  v.  County  of  Los  Angeles,  2  Cal.  I.  A. 
C.  Dec.  98S.  In  Bradley  v,  Waterbury  Clock  Co.,  1  Conn.  Comp.  Dec.  179,  it 
was  held  that  where  the  plaintiff  gave  no  notice  of  the  injury,  a  slight  scratch. 


701  COMPENSATION  §   195 

does  not  offer  or  furnish  the  services  in  a  seasonable  time,  the  em- 
ploye must  not  delay  in  procuring  them  himself.^  The  fact  that 
it  cannot  be  known  until  some  time  after  the  injury  which  of  two 
employers  is  responsible  does  not  relieve  the  responsible  employer 
from  providing  necessary  medical  treatment  after  he  has  notice  or 
knowledge  of  the  injury.^  The  employer  is  liable  for  all  reasonable 
consequences  of  his  neglect  to  furnish  the  services,  such  as  infec- 
tion resulting  from  poor  treatment  applied  by  the  employe  him- 
self,* incompetency  of  the  physician  the  employe  selects,^  and  infec- 

which  became  infected  and  necessitated  the  amputation  of  parts  of  the  third 
and  little  fingers,  until  after  he  was  taken  to  the  hospital,  but,  on  then  giv- 
ing notice,  the  employer  took  no  action,  nor  made  any  offer  of  medical  treat- 
ment, such  employer  is  liable  for  the  reasonable  expense  incurred,  more  than 
a  passive  willingness  to  furnish  treatment  being  required  of  him. 

2  In  delaying  surgical  treatment  for  more  than  two  months  after  the  in- 
jury, applicant  not  only  jeopardized  her  own  interests,  but  the  interests  of 
her  employer,  and  in  fact  slept  upon  her  own  rights  to  demand  medical  and 
surgical  treatment  at  the  expense  of  her  employer,  and  so  forfeited  them. 
Ash  V.  Barker,  2  Cal.  I.  A,  C.  Dec.  577. 

3  Foley  V.  A.  T.  Demarest  &  Co.,  1  Conn.  Comp.  Dec.  661. 

4  Where  disability  was  aggravated  by  conscientious,  but  improper,  treat- 
ment given  the  injury  by  the  injured  employe  herself,  and  infection  resulted, 
which  would  have  been  avoided  had  the  employer  promptly  furnished  medical 
services,  the  employer  was  liable  for  the  medical  expenses  consequent  upon 
the  aggravation.    Forgues  v.  Southern  Pacific  Co.,  2  Cal.  I.  A.  C.  Dec.  1038. 

5  Where  a  surgeon  of  applicant's  own  selection  does  not  diagnose  the  case 
correctly  upon  first  examination,  the  employer  is  not  relieved  of  liability  for 
the  results  of  such  mistake  by  not  having  furnished  the  treatment.  Mitchell 
V.  Occidental  Forwarding  Co.,  2  Cal.  I.  A.,  C.  Dec.  336.  Where  an  injured 
employe  is  treated  by  an  incompetent  physician  not  licensed  to  practice  in 
the  state,  and  the  treatment  given  the  employe  makes  his  injury  worse,  or 
causes  permanent  disability,  and,  the  employer  has  had  sufficient  opportunity 
to  provide  competent  medical  aid,  and  has  failed  to  do  so,  the  employer  must 
compensate  his  injured  employ^  for  all  disability  caused  by  his  injury,  includ- 
ing the  aggravation  thereof  by  malpractice.  Employers  and  insurance  car- 
riers must  not  sleep  on  their  rights  to  designate  the  treatment  that  is  to 
be  had,  and  if  they  are  negligent  or  careless  in  arranging  for  treatment,  they 
cannot  be  absolved  from  the  consequences  of  their  neglect.  Stockwell  v.  Way- 
mire,  1  Cal.  I.  A.  C.  Dec.  225. 


§  195  workmen's  compensation  702 

tion  due  to  delay  and  uncertainty  as  to  what  physician  he  should 
call.®  Where  an  employer  or  insurance  carrier  consents  to  the  em- 
ploye obtaining  his  own  physician,  it  is  liable  for  the  reasonable  cost 
of  his  services/  even  though  the  assent  be  only  passive.^  But  if 
services  are  procured  unnecessarily,  when  another  good  physician 
is  in  charge  or  is  offered,  the  employer  is  not  liable.®    Nor  is  he  lia- 

6  Where  an  injured  employ^,  failing  after  notice  to  his  employer  to  receive 
medical  assistance,  goes  first  to  one  physician,  and  then  to  another,  and  then 
to  a  physician  in  a  third  town,  in  uncertainty  what  to  do,  and  because  of  this 
indecision  the  infection  requires  amputation  of  the  arm  at  the  elbow,  in- 
stead of  merely  a  finger,  the  employer  is  responsible  for  the  disability  re- 
sulting and  for  the  medical  and  surgical  expense.  Sams  v.  Komas  &  Dorros, 
2  Cal.  I.  A.  C.  Dec.  2S5. 

7  Where  the  employe,  with  the  consent  of  his  employer,  selected  a  physician 
and  was  treated  by  that  physician  practically  until  his  recovery,  the  insur- 
ance carrier  could  not  then  substitute  its  physician  against  the  wishes  of 
the  employe.  Fly  v.  San  Diego  Transfer  Co.,  2  Cal.  I.  A.  C.  Dec.  714.  W^bere 
an  insurance  carrier  discovers  that  an  injured  employ^  of  its  insured  is  being 
treated  by  his  own  physician,  and  offers  to  pay  the  bill  when  rendered  if  it 
is  in  accordance  with  the  fee  schedule  of  the  Commission,  and  the  physician 
subsequently  renders  a  bill  to  an  extent  beyond  that  authorized  in  the  fee 
schedule,  such  insurance  carrier  has  waived  its  right  to  insist  upon  treat- 
ment of  the  injured  employ6  by  physicians  of  its  own  choice,  and  is  liable  for 
the  reasonable  value  of  the  services  of  the  physician  procured  by  the  em- 
ploye.   Devlin  v.  Smith,  1  Cal.  I.  A.  C.  Dec.  418. 

8  Where  an  employ^  was  injured,  and  upon  notifying  the  employer  was 
asked  if  he  wanted  to  go  to  a  certain  hospital  for  treatment,  to  which  he  re- 
plied that  he  would  go  to  his  own  doctor,  in  the  absence  of  any  dissent,  the 
employer  was  liable  for  medical  services  rendered  by  the  doctor  of  the  em- 
ploye's selection.    Read  v.  Bowman,  2  Cal.  I.  A.  C.  Dec.  6S1. 

9  Mahoney  v.  Gamble-Desmond  Co.,  90  Conn.  255,  96  Atl.  1025. 

In  Wyrwas  v.  Bigelow-Hartford  Carpet  Co.,  1  Conn.  Comp.  Dec.  326,  where 
the  employer's  physician  rendered  first  aid  treatment  to  the  injured  work- 
man, and  then,  sending  him  home,  went  for  additional  materials,  but  on  ar- 
riving at  the  house,  prepared  to  give  further  treatment,  was  told  another 
physician  had  been  summoned,  and  that  his  services  were  not  required,  it  was 
held  the  employe  had  exercised  his  option  to  pay  and  provide  his  own  physi- 
cian, and  that  the  employer  was  not  chargeable  for  medical  expense  (Wk. 
Comp.  Act,  pt.  B,  §  7).  In  Searles  v.  Connecticut  Co.,  1  Conn.  Comp.  Dec 
97  (affirmed  by  the  superior  court  on  appeal),  it  was  held  that  where  an  em- 


703  COMPENSATION  §    196 

ble  for  doctor  and  hospital  bills  where  he  is  given  no  chance  to 
name  the  attending  physician.'-'* 

§  196.     Where  physician  is  furnished  by  employer 

If  the  physician  which  the  employer  selects  prematurely  dis- 
charges the  employe  as  cured,  and  the  employe  procures  further 
treatment,  the  employer  must  stand  the  expense  thereof.^^     The 

ploy§,  suffering  with  a  hernia  sustained  by  accident,  went  to  his  employer's 
physician,  and  was  told  that  an  operation  was  advisable  and  necessary,  but 
said  physician  refused  to  perform  or  direct  an  operation  because  the  work- 
man had  had  a  prior  hernia,  and  he,  suffering  great  pain,  went  to  his  own 
physician,  and  after  notifying  his  employer  that  he  was  about  to  undergo  an 
operation,  and  receiving  no  offer  of  treatment,  had  the  operation  performed 
by  his  own  physician,  he  was  justified  in  so  doing,  and  the  employer  was  lia- 
ble for  the  reasonable  expense  incurred. 

Where  an  employe  told  his  employer's  repi'esentative  that  he  was  suffering 
some  physical  ailment,  refused  an  offer  of  the  services  of  one  of  the  company 
doctors,  went  home,  and  was  examined  by  his  own  physician,  and  was  later 
operated  on  in  pursuance  of  his  own  arrangements,  he  could  not  hold  the  em- 
ployer liable  for  the  amount  of  such  expense;  that  right  being  given  only 
where  the  employer  neglects  or  refuses  to  provide  the  services.  Reseberg  v. 
Hamilton  Mfg.  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  14. 

10  Bakiewicz  v.  National  Brake  &  Electric  Co.,  Rep.  Wis.  Indus.  Com.  1914- 
15,  p.  11. 

In  Sirica  v.  Scovill  Mfg.  Co.,  1  Conn.  Comp.  Dec.  171,  it  was  held  that  where 
the  workman  understood  that  he  could  have  his  injured  hand  treated  at  an 
emergency  hospital  provided  by  his  employer,  and  could  have  the  services  of 
a  skilled  physician  free  of  charge,  but  declined  and  selected  his  own  physi- 
cian, he  must  stand  his  own  expense. 

11  Where  an  employe  is  treated  by  physicians  indicated  by  the  employer,  or 
his  insurance  carrier,  is  discharged  by  them  as  cured,  and  subsequently  ob- 
tains treatment  from  other  physicians,  being  in  fact  afflicted  with  traumatic 
neurosis  after  the  date  of  his  discharge,  the  employer  or  insurer  is  liable  for 
the  reasonable  cost  of  the  subsequent  treatment.  Hakala  v.  Jacobsen-Bade 
Co.,  1  Cal.  I.  A.  C.  Dec.  328.  Where  an  employ^  is  given  treatment  by  a  phy- 
sician designated  by  the  employer,  or  the  latter's  insurance  carrier,  and  the 
physician  discharges  the  employe  as  cured,  but  thereafter  the  employe  obtains 
treatment  from  another  physician  of  his  own  choice  for  the  same  injury,  and 
it  is  shown  to  the  satisfaction  of  the  Commission  that  the  disability  had  not 
terminated  at  the  time  of  his  first  discharge,  he  is  entitled  to  an  award  for 


§  196  workmen's  compensation  704 

employer  is  also  responsible  for  a  mistaken  diagnosis  of  the  case 
by  its  own  physician. ^^  It  is  within  the  province  of  a  surgeon  placed 
in  charge  by  the  employer  to  make  all  necessary  arrangements  for 
such  treatment,  consultation,  and  assistance  as  in  his  judgment  are 
reasonably  required  to  cure  and  relieve  the  patient  from  the  effect 
of  the  injury,  and  the  expense  is  properly  chargeable  against  the 
defendant.^'  In  the  absence  of  evidence  which  clearly  establishes 
serious  malpractice,  it  will  be  assumed  that  injured  persons  will 
recover  as  speedily  when  in  the  care  of  one  surgeon  as  another, 
where  such  surgeons  are  of  standing  in  the  community  and  are 
regularly  licensed  to  practice  their  profession,  and  their  credentials 
show  that  they  have  had  regular  training  to  prepare  them  for  do- 
ing surgical  work.^*    The  amount  of  services  furnished  by  the  em- 

the  reasonable  value  of  surgical  treatment  furnished  by  the  second  physician. 
Douglas  V.  J.  &  J.  Drug  Co.,  2  Cal.  I.  A.  C.  Dec.  1G4. 

12  While  an  employer  or  insurance  carrier  is  justified  in  acting  upon  the 
recommendation  of  its  physician  that  no  disability  was  sustained  by  an  em- 
ploy6  claiming  to  have  been  injured,  the  employ^  is  not  deprived  of  his  right 
to  compensation  and  medical  attention  at  the  expense  of  the  employer,  where 
such  diagnosis  was  in  fact  erroneous,  and  the  employe  was  in  fact  disabled. 
Wayman  v.  Huff,  1  Cal.  I.  A.  C.  Dec.  358.  Such  advice  does  not  absolve  the 
employer  or  his  insurer  from  the  consequences  of  a  mistaken  diagnosis  and 
consequent  inadequate  treatment.  The  rights  of  the  injured  employe  are  not 
lost  by  reason  of  the  mistakes  of  physicians  whom  the  employer  or  his  insur- 
ance carrier  designate  to  furnish  medical  treatment.  Johnson  v.  Pacific  Sure- 
ty Co.,  1  Cal.  I.  A.  C.  Dec.  560. 

13  Swain  v.  Pacific  Telephone  &  Telegraph  Co.,  2  Cal.  I.  A.  C.  Dec.  360. 
When  the  employer's  physician  in  charge  of  an  injured  employe,  not  desiring 
to  assume  sole  responsibility  of  treating  a  grave  injury,  acquiesces  in  the  sug- 
gestion of  the  family  of  the  injured  employe  to  call  in  consultation  another 
surgeon,  and  co-operates  with  and  operates  under  the  direction  of  the  sur- 
geon so  called,  the  necessity  of  such  assistance  is  presumed.     Id. 

14  Tennant  v.  Ives,  2  Cal.  I.  A.  C.  Dec.  862. 

In  the  absence  of  convincing  testimony,  the  Commission  will  not  presume 
that,  if  the  employ^  had  been  in  the  hands  of  a  physician  furnished  by  the 
defendants,  he  would  have  been  more  quickly  cured  than  if  in  the  hands  of 
any  other  surgeon  authorized  to  practice  in  the  state.  Telford  v.  Healy-Tib- 
bitts  Cons.  Co.,  3  Cal.  I.  A.  C.  Dec.  41. 


705  COMPENSATION  §    197 

ployer  after  the  statutory  time  limit  has  expired  is  not  to  be  deduct- 
ed from  the  disability  compensation.^^  It  may  be  of  advantage  to 
the  employer  to  continue  medical  treatment  in  an  endeavor  to  gain 
a  cure  and  relieve  himself  from  further  disability  indemnity  pay- 
ments. If  he  desires  to  do  so,  the  California  Commission  has  de- 
cided that  it  vv^ill  use  its  power  to  require  the  employe  to  submit  to 
such  treatment,  and  will  authorize  a  suspension  of  payments  on  re- 
fusal to  accept  or  co-operate  with  the  treatment  thus  offered.^® 

§  197.     Change  of  physician  or  service 

An  employer  or  insurer  may  demand  a  change  of  physicians  at 
the  close  of  the  emergency  treatment  immediately  following  the  in- 
jury, or  within  a  reasonable  time  thereafter,  but  cannot  delay  for 
several  days  beyond  that,  and  until  arrangements  for  the  continua- 
tion of  treatment  have  been  entered  into,  and  then  make  such  de- 
mand, particularly  where  the  patient  is  seriously  ill.^'^  If  the  serv- 
ices are  offered  by  the  employer  within  a  reasonable  time,  and  are 

15  The  California  Commission  is  without  authority  to  deduct  from  the  com- 
pensation due  an  injured  employ^  the  cost  of  medical  services  furnished  at 
the  expense  of  the  employer  after  the  expiration  of  90  days  from  the  date 
of  the  accident.  While  the  employer  is  under  no  duty  to  furnish  medical  treat- 
ment after  90  days,  the  cases  in  which  the  Commission  can  allow  deductions 
from  compensation  due  are  limited  by  section  29  of  the  Act  to  the  situations 
mentioned  therein,  which  do  not  include  the  present  case.  Cypher  v.  United 
Development  Co.,  1  Cal.  I.  A.  C.  Dec.  425. 

16  Hakala  v.  Jacobsen-Bade  Co.,  1  Cal.  I.  A.  C.  Dec.  328. 

17  Jameson  v.  Bush,  1  Cal.  I.  A.  C.  Dec.  507  In  case  of  an  injury  of  se- 
rious character,  that  physician  should  be  summoned  by  either  party  who 
can  be  the  most  quickly  obtained,  and  he  should  render  such  first  aid  as  the 
necessities  of  the  case  require.  This  is  a  proper  charge  against  the  employer 
and  its  insurance  carrier,  no  matter  by  whom  furnished.  Immediately  there- 
after, the  employer  should  instruct  his  injured  employ^  what  physician  is  to 
have  charge  of  his  case,  and  to  what  hospital  he  shall  go,  if  any.  Scott  v. 
.^tna  Life  Insur.  Co.,  1  Cal.  I.  A.  C.  Dec.  343.  If  they  fail  to  furnish  a  physi- 
cian seasonably,  they  cannot  require  the  employ^  to  change  physicians  when 
they  get  ready  to  furnish  one.  The  employer  has  a  right  to  select  the  phy- 
sician.   He  must  take  the  initiative,  and  must  act  promptly  in  so  doing.     If 

HoN.CoiiP. — 45 


§  107  workmen's  compensation  706 

refused  by  the  employe,  the  emplo3^er  is  released  from  liability  for 
medical  and  surgical  treatment.^^  Where  an  employer  or  insurance 
carrier  offers  an  employe  his  choice  of  a  truss  or  an  operation  for 

he  fails  to  do  so,  he  cannot  afterward  require  the  injured  person  to  change 
his  physician.    Bassett  v.  Thomson  Graf  Edler  Co.,  1  Cal.  I.  A.  C.  Dec.  60. 

Where  an  employe  was  not  instructed  at  once  by  the  employer  as  to  where 
to  go  for  medical  treatment  at  the  expense  of  the  employer,  and  before  re- 
ceiving such  notice  has  incurred  reasonable  expenses  for  treatment  and  made 
arrangements  for  its  continuance,  he  is  not  required,  upon  receipt  of  notice 
by  the  employer,  to  dismiss  his  own  physician  and  put  himself  under  the  med- 
ical attention  offered  by  the  employer.  Denehy  v.  Panama-Pacific  Interna- 
tional Exposition  Co.,  1  Cal.  I.  A.  C.  Dec.  109.  Where  an  employe  is  seriously 
injured,  and  a  physician  is  called  at  the  instance  of  the  employer,  and  per- 
forms a  necessary  capital  operation,  and  the  insurer  does  not  tender  a  physi- 
cian until  after  the  operation  has  been  performed,  it  is  too  late  for  the  in- 
surance carrier  to  insist  upon  a  change  of  physicians.  It  is  an  unreasonable 
request  and  an  improper  undertaking  to  change  physicians  immediately  after 
a  capital  operation  has  been  performed.  Such  change  should  be  made  only 
when  it  becomes  manifest  that  the  operating  surgeon  is  wholly  unfit  to  take 
care  of  the  case,    Matteoni  v.  Roberts  &  Clark,  1  Cal.  I.  A.  C.  Dec.  356. 

18  Kelley  v.  Pacific  Electric  Ry.  Co.,  1  Cal,  I.  A.  C.  Dec.  150. 

Where  proper  medical  and  surgical  services  to  relieve  an  injured  employ^ 
were  at  once  tendered  by  the  defendants  and  refused  x\-ithout  adequate  cause, 
the  employe  thereupon  procuring  the  services  of  his  own  physician,  he  was 
not  entitled  to  have  any  allowance  made  for  the  charges  incurred  by  him 
for  services  rendered.  Eby  v.  Weaver,  2  Cal.  I.  A.  C.  Dec.  715.  If  an  injured 
employ^  continues  with  medical  treatment  of  his  own  selection  after  the  em- 
ployer's insurer  has  seasonably  tendered  proper  medical  attention,  he  must 
stand  the  cost  himself.  On  the  other  hand,  if  he  continues  such  treatment  by 
arrangement  of  the  insurance  company,  the  duty  of  the  latter  to  pay  for 
such  treatment  arises  through  its  contract  with  the  physician,  and  is  not  a 
liability  imposed  by  the  Compensation  Act.  The  Industrial  Accident  Commis- 
sion is  therefore  without  jurisdiction  to  render  an  award  for  the  reasonable 
value  of  services  in  either  event.  Ely  v.  Maryland  Casualty  Co.,  1  Cal.  I.  A. 
C,  Dec.  335.  Where  the  employer  or  his  insurance  carrier  notifies  an  injured 
employ^  seasonably  that  he  will  be  treated  free  of  charge  by  the  physician 
furnished  by  the  former,  and  direct  him  to  go  to  such  physician,  the  employe 
is  not  justified  in  going  elsewhere  for  medical  aid,  and  the  employer  and  his 
insurer  are  not  liable  for  the  cost  of  any  medical  attention  given  the  injured 
workman  by  any  other  physician.  Newkirk  v.  Union  Ice  Co.,  1  Cal.  I.  A.  C, 
Dec.  166.  Where  an  employ^  is  tendered  and  refuses  surgical  treatment  which 
would  necessitate  hospital  care,  and  later  is  treated  by  his  own  physician 


707  COMPENSATION  §    197 

the  treatment  of  his  hernia,  and  a  truss  is  chosen,  but  before  a  re- 
quired approval  of  this  settlement  by  the  California  Commission 
the  employe  requests  an  operation,  and  it  appears  that  he  is  entitled 
to  relief,  he  will  be  required  to  refund  the  cost  of  the  truss  before  be- 
ing tendered  an  operation  at  the  expense  of  the  insurance  carrier^^ 
If  they  furnish  medical  treatment,  and  the  employe  becomes  dis- 
satisfied and  forsakes  the  treatment  for  that  of  his  own  procuring, 
unless  the  furnished  treatment  is  inadequate  or  inefficient,  he  must 
bear  the  expense  he  incurs  ;^*'  but,  if  the  services  are  inefficient  or 

and  incurs  necessary  hospital  expenses,  the  employer  is  not  liable  for  such 
expenses.    Kopouen  v.  Union  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  1055. 

Where  a  clerk  was  asked  to  bind  a  slight  laceration  of  an  injured  hand  of 
an  employ^,  and  subsequently  infection  occurs,  and  with  knowledge  that 
there  was  an  employer's  physician  available,  the  employe's  mother  calls  in  a 
difCerent  physician  to  treat  the  hand,  and  a  few  days  thereafter,  when  the 
employer  received  notice  of  the  injury,  offer  was  made  of  the  services  of  the 
company  physician,  which  the  employe?  refused,  the  employer  is  not  liable  for 
the  medical  expense  incurred.  McKnight  v.  American  Can  Co.,  2  Cal.  I.  A 
C.  Dec.  427. 

19  Taylor  v.  Spreckels,  2  Cal.  I.  A.  C.  Dec.  62. 

20  The  right  to  medical  and  surgical  treatment  is  forfeited  if  the  injured 
man,  without  warrant,  forsakes  the  medical  service  supplied  by  the  employ- 
er. Casanegri  v.  Madera  Sugar  Pine  Co.,  1  Cal.  I.  A.  C.  Dee.  5S9;  Evans 
V.  Pacific  Coast  Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  140. 

Where  the  employer,  the  county  of  Los  Angeles,  had  placed  the  applicant 
in  the  county  hospital  after  his  injury,  and  he  later  became  dissatisfied  and 
left  the  hospital  without  the  consent  of  the  employer,  the  county  is  not  liable 
for  the  reasonable  value  of  medical  treatment  furnished  by  other  than  its 
own  hospital  or  physicians.  Van  Lanker  v.  County  of  Los  Angeles,  1  Cal.  I. 
A.  C.  Dec.  107.  Where  it  is  shown  that  the  injured  employe,  while  receiving 
hospital  and  medical  treatment  furnished  by  the  employer,  and,  contrary  to 
the  wishes  of  his  employer  and  the  advice  of  the  attending  physician,  gives 
up  such  treatment  and  secures  elsewhere  and  of  his  own  selection  other  med- 
ical treatment,  he  is  not  entitled  to  reimbursement  for  the  charges  of  the  serv- 
ices incurred  by  him.  (Commissioner  French  dissented  on  the  ground  that 
the  facts  to  him  showed  an  implied  permission  to  secure  medical  treatment 
elsewhere.)  O'Connor  v.  Tosemite  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  334.  Where 
it  is  understood  by  the  workmen  of  the  defendant  employer  generally,  and  by 
the  applicant  in  particular,  that  the  employer  maintains  a  hospital  upon  its 
grounds  in  which  all  the  employes  are  entitled  to  treatment  free  of  charge  for 


§  197  workmen's  compensation  708 

inadequate,  the  employe  is  justified  in  changing  to  his  own  physi- 
cian, and   will  be  allowed  the  reasonable  cost  of  the  services. ^^ 

accidental  injuries  received  by  them,  and  the  applicant  after  treatment  at 
such  hospital  becomes  dissatisfied  and  secures  other  treatment  of  his  own 
choice,  without  the  consent  of  the  employer,  he  is  not  entitled  to  an  award 
for  the  cost  of  the  treatment  rendered  by  his  physician,  in  the  absence  of 
proof  that  the  employer's  hospital  service  was  inefficient  or  inadequate.  Mc- 
Bride  v.  Union  Iron  Works,  1  Cal.  I.  A.  C.  Dec.  376.  Where  the  cost  of  main- 
taining a  hospital  for  the  treatment  of  injured  employes  upon  the  gi'ounds 
of  the  employer  is  wholly  or  partly  defrayed  by  an  association  of  the  em- 
ployes, or  by  small  assessments  deducted  from  the  wages  of  the  employes, 
and  an  injured  employ^  receives  treatment  from  such  hospital  for  a  time,  but 
becomes  dissatisfied  and  procures  treatment  of  his  own  choice,  the  employer 
is  not  liable  for  such  treatment.  The  employer  having  designated  such  place 
as  a  place  where  his  employes  can  obtain  treatment  free  of  cost  to  them 
(as  far  as  the  actual  cost  of  the  treatment  is  concerned),  the  only  question  is 
as  to  the  duty  of  the  employer  to  refund  the  cost  of  treatment  to  the  hospital 
association.  While  this  is  a  fit  subject  for  legislative  control,  it  is  one  with 
which  the  Industrial  Accident  Commission  has  nothing  to  do  as  the  law  now 
stands.  Id.  The  failure  of  the  employer  to  disclaim  liability  for  treatment 
elsewhere  on  being  informed  of  it  does  not  make  him  liable  for  such  outside 
treatment,  in  the  absence  of  express  consent  to  its  being  furnished  at  his 
expense.  Id.  Where  an  injured  employ^  becomes  dissatisfied  with  the  med- 
ical treatment  furnished  by  his  employer,  and  procures  other  treatment  of 
his  own  selection,  and  is  thereafter  operated  upon  by  his  own  physician,  and  it 
is  claimed  by  the  employer  that  such  operation  was  unjustifiable,  and  un- 
necessarily prolonged  the  workman's  disability,  such  claim  is  not  a  defense 
against  liability  for  compensation  for  the  whole  period  of  disability  actually 
sustained.  It  is,  however,  a  good  defense  against  liability  for  the  cost  of 
medical  treatment  procured  by  the  applicant,  following  his  refusal  of  further 
treatment  supplied  by  the  defendant.  Tennant  v.  Ives,  2  Cal.  I.  A.  C.  Dec. 
169. 

21  The  California  Commission  will  exact  from  the  physician  and  surgeon 
whom  the  employer  selects  the  utmost  care  and  attention  of  persons  injured 
by  accident.  But  testimony  of  injured  persons  as  to  neglect  or  poor  treat- 
ment by  physicians  or  at  hospitals  supplied  by  the  employer,  unsupported  by 
evidence  of  physicians  in  charge,  is  to  be  carefully  scrutinized,  as  persons  in 
pain  and  bedridden  are  wont  to  regard  all  hospitals  as  places  of  torment. 
Unless  such  poor  treatment  be  clearly  established,  an  employ^  abandoning 
medical  attention  or  hospital  accommodations  furnished  by  his  employer  does 
so  at  his  own  cost.  Kelley  v.  Pacific  Electric  Ry.  Co.,  1  Cal.  I.  A.  C.  Dec. 
150.     Where  the  employ^  is  dissatisfied  with  the  advice  given  him  by  the 


709  COMPENSATION     .  §    197 

The  employer's  assent  to  a  change  of  physicians  does  not  bind  the 
insurer,  where  the  original  services  were  furnished  by  it.^^  , 

physician  or  surgeon  first  selected  by  the  insurance  company  or  employer,  and 
after  the  communication  of  such  dissatisfaction  he  is  directed  to  another 
surgeon,  who  is  found  to  be  out  of  town,  and  thereupon  he  selects  his  own 
family  physician,  he  is  entitled  to  reimbursement  for  the  cost  of  such  services. 
Mass.  Bonding  &  Insur.  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  480,  170  Cal. 
767,  151  Pac.  419.  Where  an  employe,  who  had  sustained  a  fracture  of  the 
right  clavicle,  was  on  the  day  following  put  by  the  employer  in  the  care  of 
a  physician  and  told  that  some  one  else  would  be  called,  if  desired,  bi;t  such 
physician  who  attended  him,  because  of  lack  of  facilities  in  the  country 
town,  had  no  means  of  determining,  and  did  not  definitely  determine,  the  na- 
ture and  extent  of  the  injurj",  and  the  employ^,  after  remaining  for  two  days 
longer,  without  receiving  or  asking  for  further  medical  treatment,  left  the 
town  and  entered  a  hospital  in  San  Francisco,  where  the  fracture  was  dis- 
covered and  expert  treatment  given,  the  employer  was  liable  for  such  treat- 
ment. Miller  v.  ^tna  Springs  Co.,  2  Cal.  I.  A.  C.  Dec.  781.  Where  the 
medical  treatment  accorded  an  injured  employe  was  shameful  and  utterly  in- 
adequate, and  likely  to  result  in  death,  and  the  refusal  of  the  physician  of 
the  employer  to  permit  the  employ^  to  go  elsewhere  for  treatment  was  un- 
justifiable, the  employer  must  pay  the  full  medical  bill  incurred  by  the  em- 
ployg  in  securing  proper  treatment.  Campbell  v.  L.  E.  White  Lumber  Co.,  3 
Cal.  I.  A.  C.  Dec.  33. 

In  Patralia  v,  American  Brass  Co.,  1  Conn.  Comp.  Dec.  412,  where  the  phy- 
sician furnished  by  the  employer  to  treat  claimant's  hernia  supplied  a  truss, 
and,  that  giving  no  relief,  furnished  a  second,  and  told  claimant  to  go  back 
to  work  in  a  couple  of  days,  and  he,  trying  to  work,  was  unable  to  do  so, 
and  was  then  denied  the  privilege  of  seeing  the  physician  because  of  the  ex- 
pense, whereupon  he  submitted  to  an  operation  by  a  surgeon  of  his  own  choice, 
it  was  held  the  employer  had  failed  to  promptly  provide  proper  treatment, 
and  was  liable  for  the  expense  of  the  operation  incurred  by  the  employe. 

An  employe,  not  being  satisfied  with  the  medical  services  furnished  by  the 
insurer's  physician,  engaged  his  own  physician  and  claimed  compensation  on 
account  of  his  liability  to  his  physician  for  the  services  rendered  him.  It  was 
agreed  that  the  employe  was  justified  in  changing  physicians,  and  was  held 
that  he  was  entitled  to  a  reasonable  allowance  for  the  services  he  secured. 
O'Brien  v.  Employers'  Liab.  Assur.  Corp.  Ltd.,  2  Mass.  Wk,  Comp.  Cases,  398 
(decision  of  Com.  of  Arb.). 

22  Where  an  injured  employe,  while  under  treatment  by  a  physician  and  at 
a  hospital  admittedly  supplied  by  the  insurance  carrier,  abandons  such  treat- 
ment without  adequate  cause  or  justification,  and  without  the  knowledge  of 
the  insurance  carrier,  and  procures  at  his  own  expense  other  hospital  and 


§  198  workmen's  compensation  710 

§  198.     Expense  for  which  employer  is  liable 

Medical  and  surgical  services  have  been  held  to  include  dental 
work,-^  and  first  aid  treatment/^  and  expense  necessarily  incurred 
by  him  in  furnishing  two  physicians, ^^  and  securing  a  physician 
from  a  distance;  -'^  but  not  treatment  by  a  Christian  Science  prac- 
titioner,"'^ or  the  expense  of  an  artificial  limb.^^     The  fact  that  the 

medical  treatment,  with  his  employer's  consent,  the  insurance  carrier  is  not 
liable  for  the  medical  and  hospital  charges  incurred  by  him,  notwithstanding 
his  employer's  consent.     Spring  v.  J.  G.  Miller  Co.,  3  Cal.  I.  A.  C.  Dee.  4. 

23  Where  the  accident  causes  the  loss  of  several  teeth,  but  no  other  injuries 
or  loss  of  working  time,  the  employe  is  entitled  to  compensation  for  the  rea- 
sonable value  of  dental  services  rendered  to  cure  and  relieve  him  from  the 
consequences  of  the  accident.  Day  v.  Lincoln  Sightseeing  Co.,  1  Cal,  I.  A. 
G.  Dec.  269. 

24  An  employe  must  not  refuse  first  aid  treatment  at  the  hands  of  the  per- 
son designated  by  the  employer  to  render  first  aid  services  and  provided  with 

2  5  In  Wessman  v.  Bloomfield,  1  Conn.  Comp.  Dec.  336,  it  was  held  that, 
while  the  Act  requires  the  furnishing  of  only  one  physician,  if  the  employer 
sees  fit  to  furnish  two  different  physicians  or  surgeons,  he  must  pay  them 
both. 

2  6  In  Hodge  v.  Hoffman,  1  Conn.  Comp.  Dec.  322,  where  the  employer  con- 
sulted the  employe  as  to  what  surgeon  should  be  called  to  treat  the  frac- 
ture, and  in  pursuance  of  this  discussion  secured  a  surgeon  from  a  town  23 
miles  away,  the  employer  was  liable  for  the  reasonable  value  of  the  services 
rendered,  though  their  cost  was  considerably  more  than  they  would  have 
been  had  a  surgeon  been  secured  in  the  town  where  claimant  resided. 

2  7  Where  the  ailments  of  the  applicant  indicated  necessity  for  surgical 
treatment,  and  she  had  relied  for  two  months  largely  upon  treatment  by  a 
Christian  Science  practitioner,  regardless  of  what  may  be  said  in  favor  of 
treatment  at  the  hands  of  Christian  Science  practitioners  for  other  ailments 
occasioned  by  industrial  accidents,  the  California  Commission  cannot  hold 
that  such  treatment  may  reasonably  be  required  to  cure  and  relieve  as  these 
words  are  used  in  the  Compensation  Act.  Ash  v.  Barker,  2  Cal.  I.  A.  C.  Dec. 
577. 

As  to  competency  of  physician  furnished  or  offered,  see  §  195,  note  96,  ante. 

2  8  In  Pedroni  v.  C.  W.  Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  670,  it  was 
held  that  the  medical,  surgical,  and  hospital  expenses  required  of  the  em- 
ployer by  section  7  of  part  B  of  the  Act  did  not  include  the  expense  of  an 
artificial  limb,  where  the  injury  necessitated  the  amputation  of  the  natural 
limb. 


711  COMPENSATION  §   198 

claimant  was  not  sent  to  a  hospital,  such  treatment  not  being  nec- 
essary in  view  of  the  extent  of  the  injury,  does  not  entitle  him  to 
recover  the  value  of  his  board  during  incapacity.^^  The  California 
Act  limits  the  extent  of  the  medical  services  for  which  the  employer 
is  liable  to  90  days,  and  after  that  time  the  Commission  can  neither 
compel  the  employer  to  furnish,  nor  the  employe  to  accept,  such 
services.^"  The  Michigan  limit  is  3  weeks,  commencing  when  it 
is  first  needed, ^^  and  in  Iowa  there  is  a  double  limit  of  $100  in  cost 
or  tv/o  weeks  in  time.^^     In  Minnesota  the  court  has  no  right  to 

the  proper  equipment  for  this  purpose,  merely  because  such  person  is  not  a 
physician  or  person  skilled  in  such  treatment.  The  law  of  California  re- 
quires every  considerable  employer  of  labor  to  keep  in  his  camp  a  first  aid 
kit,  in  order  that  any  injury  may  be  washed  with  antiseptic  solution  and 
dressed  in  a  way  to  keep  dirt  out  of  it  and  avoid  infection,  and  it  is  the  duty 
of  every  injured  employe  to  submit  to  that  treatment  until  the  services  of  a 
physician  can  be  obtained.  But  where  an  employe  refuses  first  aid  treatment 
tendered  him,  for  the  reason  that  no  physician  was  present  to  administer  it, 
the  employer  is  not  discharged  thereafter  from  his  duty  to  furnish  treatment 
by  a  physician.    Gregory  v.  Merrill  Metallurgical  Co.,  1  Cal.  I.  A.  C.  Dec.  408. 

2  9  Hurlowski  v.  American  Brass  Co.,  1  Conn.  Comp.  Dec.  6. 

30  (St.  1913,  c.  176,  §  15  [a])  Burkard  v.  San  Francisco  Breweries,  Ltd.,  2 
Cal.  I.  A.  C.  Dec.  365. 

Where,  owing  to  mistaken  diagnosis  and  inadequate  treatment,  the  90-day 
period  during  which  medical  treatment  can  be  required  of  the  employer  or 
insurance  carrier  has  elapsed  without  effecting  a  cure,  the  Commission  has 
no  power  to  require  the  employer  or  insurance  carrier  to  furnish  further 
treatment,  nor  can  it  require  the  injured  person  to  devote  any  part  of  his 
disability  indemnity  to  procuring  treatment.  Johnson  v.  Pacific  Surety  Co., 
1  Cal.  I.  A.  C.  Dec.  560. 

There  was  a  similar  decision  under  the  Roseberry  Act.  Marshall  v.  Ran- 
some  Concrete  Co.,  2  Cal.  I.  A.  C.  Dec.  923. 

31  Claimant  was  injured  while  in  the  exercise  of  his  ordinary  duties,  but 
serious  effects  did  not  develop  until  more  than  eight  weeks  after  the  accident 
occurred.  Payment  for  medical  and  hospital  services  was  disputed  on  the 
, — ( • 

3  2  An  employer  is  required  to  furnish  the  injured  employ^  with  reasonable 
surgical,  medical,  and  hospital  services  and  supplies,  but  he  need  not  fur- 
nish any  in  excess  of  a  cost  of  $100  or  for  more  than  two  weeks  following  the 
necessity  for  medical  attention.  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915) 
p.  30. 


§  198  workmen's  compensation  712 

award  medical  expenses  in  excess  of  $100,  unless  a  special  applica- 
tion is  made  for  the  excess,  and  then  not  in  excess  of  $200.^^  The 
provisions  made  by  the  Wisconsin  Act  for  medical  aid  are  probably 
more  liberal  than  the  provision  made  by  any  other  Compensation 
Act  in  the  United  States.^*  The  time  limit  under  this  Act  is  90  days. 
Where  part  of  the  medical  expense  which  is  sought  to  be  charged 
to  the  employer  was  incurred  after  the  90-day  maximum  period 
had  expired,  and  the  remainder  without  knowledge  on  the  part  of 

ground  th&t  they  were  rendered  more  than  three  weeks  after  the  accident, 
but  the  Board  held  that  an  eraploj-er  must  furnish  the  injured  employ^  medi- 
cal and  hospital  service,  not  exceeding  three  weeks  in  point  of  time,  beginning 
at  the  time  the  injury  requires  it.  (Wk.  Comp.  Act,  pt,  2,  §  4)  In  re  Hart, 
Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  18. 

3  3  State  ex  rel.  Anseth  v.  District  Court  (Minn.)  158  N.  W.  713. 

3  4  In  the  report  of  the  Wisconsin  Industrial  Commission,  1914-1.5,  it  is 
said:  "The  Wisconsin  Act  provides  more  liberal  medical  aid  than  any  other 
Compensation  Act  in  the  United  States.  In  this  respect  the  law  is  eminently 
wise.  On  economic  grounds  alone  it  is  cheaper  for  the  employer  to  save  an 
arm  by  an  expensive  operation  than  to  pay  indemnity  for  the  loss  of  an  arm. 
It  is  for  the  interest  of  the  employer  to  give  the  best  medical  attendance; 
that  it  is  also  for  the  interest  of  the  workman  and  of  the  community  goes 
without  saying.  There  Is  reason  to  believe,  however,  that  medical  service 
in  this  state  is  costing  too  much.  The  Commission's  records  indicate  that 
physicians  and  hospitals  received  over  $400,000  for  services  rendered  under 
the  Compensation  Act  during  the  last  fiscal  year.  This  is  nearly  one-half 
the  total  amount  paid  directly  to  injured  workmen  and  their  families.  It  is 
probable  that  the  Compensation  Act  has  very  greatly  increased  the  income  of 
the  medical  profession  as  a  whole.  Hundreds  of  serious  injuries  which  doc- 
tors formerly  treated  on  a  charity  basis  are  now  paid  cases.  This  is  as  it 
should  be.  The  medical  profession  ought  not  to  be  called  upon  to  take  cai-e 
of  injured  workmen  for  less  thaii  the  service  is  fairly  worth.  On  the  other 
hand,  since  the  pay  is  certain  and  the  number  of  cases  large,  the  fees  should 
not  be  exorbitant.  A  great  number  of  physicians,  including  the  recognized 
leaders  of  their  profession,  have  shown  a  spirit  of  co-operation  and  have  ren- 
dered highly  skilled  service  at  very  moderate  cost.  Some,  however,  have  been 
disposed  to  feel  that  the  employer  or  the  insurance  company  is  rich  and  to 
render  bills  based  upon  that  assumption.  Chapter  241  of  the  Laws  of  1915 
gives  the  Commission  power  to  pass  upon  the  reasonableness  of  medical  and 
hospital  bills  in  disputed  cases.  It  is  hoped  that  a  basis  of  charge  can  be 
agreed  upon  which  will  be  fair  to  all  parties  concerned." 


713  COMPENSATION  §   198 

the  employer  that  the  workman  had  sustained  an  accident,  or  that 
he  was  in  need  of  treatment,  the  claim  will  be  dismissed. ^^  The 
date  of  the  injury,  from  which  the  employer  is  liable  for  medical 
expense  under  these  Acts,  is  the  time  when  the  injury  becomes 
effective,  and  causes  illness.^" 

The  liability  of  the  employer  is  limited  to  services  required  by 
the  accident,  and  if  the  accident  causes  an  extension  of  a  prior 
condition  and  disability,  and  an  operation  is  performed  to  cure  the 
entire  abnormality,  the  employer  is  only  liable  for  that  portion  of 
the  expense  which  is  required  to  repair  the  injury  caused  by  the 
accident.^^  He  is  liable  only  for  "reasonable  expense,"  which  is  to 
be  the  ordinary  cost  of  like  treatment,^^  and  not  increased  because 

35  Oberts  v.  Wisconsin  Telephone  Co.,  Kep.  Wis.  Indus.  Com.  1914-15,  p.  24. 

3  6  Barton  v.  N.  T.,  K  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec.  227.  In 
Peterson  v.  H.  B.  Beach  &  Sons,  1  Conn.  Comp.  Dec.  469,  it  was  held  that  au 
employe  is  entitled  to  30  days'  medical  treatment  in  addition  to  the  day  on 
which  he  is  injured.  In  Kiniavsky  v.  New  Haven  Carriage  Co.,  1  Conn. 
Comp.  Dec.  119,  it  was  held  that  the  day  of  injury  is  not  to  be  counted  in 
figuring  the  30  days  for  which  the  employer  must  furnish  medical  treat- 
ment ;  he  is  liable  for  30  full  days,  beginning  the  day  after  the  injury. 

3T  Loustalet  v.  Metropolitan  Laundry  Co.,  1  Cal.  I.  A.  C.  Dec.  318. 

38  The  amount  allowed  for  medical  and  hospital  services  will  in  no  case 
exceed  such  as  is  ordinarily  charged  and  paid  for  similar  services  in  the 
community  where  they  are  rendered.  In  re  David  Bruns,  vol.  1,  No.  7,  Bui. 
Ohio  Indus.  Com.  p.  5.  Expenses  incurred  by  an  employe  in  excess  of  sum 
awarded  were  here  declared  unreasonable  and  not  given.  United  States 
Fidelity  &  Guaranty  Co.  v.  Rosenbach,  1  Cal.  I.  A.  C.  Dec.  92. 

Reasonableness  of  charges  and  expenses. — Reasonable  medical  charges  for 
setting  and  treating  two  broken  ribs  would  not  exceed  $15.  Demott  v.  Stone 
&  Webster  Construction  Co.,  1  Cal.  I.  A.  O.  Dec.  1S7.  Where  a  son  gives  up 
employment  in  which  he  is  earning  $3  a  day  to  care  for  his  injured  father, 
from  May  28  to  July  2,  $90  is  the  reasonable  value  of  such  services.  Kelley 
v.  Manley,  2  Cal.  I.  A.  C.  Dec.  318.  Where  the  physician  in  charge,  while 
convinced  of  the  futility  of  an  operation  to  save  the  workman's  life,  calls  in 
three  other  physicians  to  consult  with  as  to  the  proper  course,  the  workman 
dying  next  day  without  the  performance  of  an  operation,  a  charge  of  $10 
each  for  the  consulting  physicians  was  a  reasonable  charge  and  such  services 
were  such  "as  may  reasonably  be  required."     Schlegal  v.  Frankfort  General 


§  198  workmen's  compensation  714 

it  is  he  or  the  insurer  who  must  pay.^^     The  reasonableness  of  a 
charge  depends  on  the  position  of  the  average  employe,  not  on  the 

Insur.  Co.,  2  Cal.  I.  A.  C.  Dec.  491.  In  Razziuni  v.  John  Salter  &  Son,  1  Conn. 
Comp.  Dec.  687,  a  physician's  charge  of  $3  for  dressings  of  a  fracture  of 
the  great  toe,  accompanied  by  infection,  done  at  the  home  of  the  patient  a 
mile  and  a  quarter  from  the  physician's  office,  he  furnishing  all  gauze  and 
other  materials,  was  held  reasonable  and  approved.  In  Swanson  v.  Sargent 
&  Co.,  1  Conn.  Comp.  Dec.  43.3,  where  it  was  necessary,  in  order  for  the 
claimant  to  reach  the  office  of  the  physician  furnished  by  his  employer,  to 
hire  a  horse  and  wagon,  and  later  to  pay  car  fare,  such  expense  was  held 
reasonably  included  under  "medical  aid,"  and  was  chargeable  to  the  employer 
(Wk.  Comp.  Act,  pt.  B,  §  7).  In  Beinotovitz  v.  National  Iron  Works,  1  Conn. 
Comp.  Dec.  623,  where  it  appeared  highly  probable  that,  had  the  employe 
been  paying  his  own  bill,  he  would  have  been  sent  to  the  public  ward  of  the 
hospital,  instead  of  a  semiprivate,  and  would  there  have  received  the  services 
of  a  physician  without  extra  charge,  and  treatment  entirely  adequate  to  the 
nature  of  his  injury,  the  surgeon's  bill  for  attendance  upon  him  was  disap- 
proved; it  being  especially  emphasized  that  it  was  the  surgeon  claiming  re- 
muneration who  had  sent  him  to  the  semiprivate  ward.  In  Johnson  v.  Spring 
Glen  Farm,  Inc.,  1  Conn.  Comp.  Dec.  593,  where  the  physician  called  up  the 
president  of  the  respondent  company  shortly  after  he  was  taken  to  the  hos- 
pital, and  discussed  the  treatment  to  be  provided,  the  president  agreeing  that 
the  workman  be  sent  to  a  private  ward,  where  his  surgeon's  bill  would  be 
extra,  a  bill  of  $100  for  the  operation  and  $1  each  for  54  dressings  was  held 
reasonable  and  approved.  In  Christophson  v.  Turner  Construction  Co.,  1 
Conn.  Comp.  Dec,  591,  a  hospital  bill  for  $259.36,  including  a  special  male 
nurse,  rendered  necessary  because  the  patient  was  for  a  time  violently  m- 
sane,  and  attendance  and  room  at  $18  per  week  for  3  4/7  weeks,  was  approved, 
in  addition  to  the  physician's  bill.  The  injury  consisted  of  a  broken  collar 
bone  and  a  fracture  at  the  base  of  the  skull,  and  by  excellent  care  provided 
the  employ^  entirely  recovered.  It  appearing  that  the  hospital  made  no 
profit,  and  that  the  exigencies  of  the  particular  case  called  for  unusual 
treatment,  the  charge  was  held  reasonable.  In  Barton  v.  N.  Y.,  N.  H.  &  II. 
R.  R.  Co.,  1  Conn.  Comp.  Dec.  227,  it  was  held  that,  while  ordinarily  the  pub- 
lic ward  in  a  hospital  is  ample  provision  of  hospital  treatment,  where  such 
public  ward  is  filled,  it  is  reasonable  for  the  workman  to  be  treated  in  a 
semiprivate  ward  costing  $3  per  week  more.  In  Peterson  v.  H.  B.  Beach  & 
Sons,  1  Conn,  Comp,  Dec,  469,  on  the  approval  or  disapproval  of  a  physician's 

39  The  amount  allowed  for  reasonable  expenses  of  medical  and  surgical 
treatment  should  be  the  fair  value  of  the  service  as  such— neither  more  nor 
less  because  of  the  employer  being  liable  therefor.  City  of  Milwaukee  v. 
Miller,  154  Wis.  652,  144  N.  W,  188,  L.  R,  A,  1916A,  1,  Ann,  Cas.  1915B,  847. 


715  COMPENSATION  §   198 

financial  position  of  the  particular  man  treated.'^''  As  said  in  a  Con- 
necticut case :  "The  amount  to  be  charged  by  the  physician  is  not 
to  be  determined  by  what  the  insurance  company  or  the  industrial 
corporation  is  able  to  pay.    It  is  not  to  be  determined  by  the  pliy- 

bill  of  $82  rendered  for  41  treatments  to  the  workman's  eye  in  27  days,  the 
Commissioner  by  agreement  of  the  parties  made  a  private  investigation,  and 
finding  that,   though  oculists  always  made  a  book   charge   of  $2   for   such 
treatments,  in  cases  like  the  present,  where  the  workman's  wages  were  low, 
they  discounted  the  bill  or  rendered  some  treatments  free,  reduced  the  bill 
to  $50.     In  Wessman  v.  Bloomfield,  1  Conn.  Comp.  Dec.  336,  where,  though 
the  bill  of  $26  was  not  in  the  abstract  improper,  it  appeared  that  deductions 
were  usually  made  in  case  of  patients  in  poorer  circumstances,  a  deduction 
of  $5  was  made  by  the  commissioner.    In  Hodge  v.  Hoffman,  1  Conn.  Comp. 
Dec.  322,  where  it  appeared  from  medical  testimony  that,  had  a  surgeon  been 
secured  in  the  town  where  the  claimant  resided,  $5  would  have  been  a  rea- 
sonable charge  therefor,  but  the  surgeon  agreed  upon  had  to  travel  23  miles, 
and  that,  by  reason  of  the  special  nature  of  his  business,  any  loss  of  business 
due  to  his  absence  would  be  serious,  $25  was  held  to  be  a  reasonable  charge 
for  each  treatment,  and  was  awarded,  together  with  $50  for  the  initial  treat- 
ment in  reducing  the  fracture.     In  Mazura  v.  Kliugon,  1  Conn.  Comp.  Dec. 
296,  where  a  physician  gave  preliminary  treatment  and  then  took  the  work- 
man to  a  hospital,  it  was  held  that  at  the  time  claimant  entered  the  hospital 
he  came  under  the  charge  of  the  physician  there,  and  the  bill  of  the  former 
physician  for  services  rendered  to  the  employe  in  the  hospital  was  disallowed. 
In  Malone  v.  H.  R.  Douglas,  Inc.,  1  Conn.  Comp.  Dee.  297,  where  the  qlaimaut 
had  been  treated  in  a  public  ward  of  the  hospital,  a  surgeon's  bill  for  $100 
for  a  hernia  operation  was  disallowed,  on  the  ground  that  the  public  generally 
in  other  than  compensation  cases,  when  treated  in  the  public  ward,  were  not 
required  to  pay  extra  for  operations.     While  it  was  admitted  that,   if  the 
employe  had  been  in  a  private  ward  and  paying  the  bill  himself,  the  amount 
would  have  been  reasonable,   it  was  found  that  the  charges  in  the  public 
ward  covered  the  cost  of  any  necessary  operation,   and  that  the  employer 
could  not  be  required  to  pay  more  than  the  public  generally  fOr  like  treat- 
ment.    In  Prohaska  v.  American  Typewriter  Co.,  1  Conn.  Comp.  Dec.  116,  a 
surgeon's  bill  of  $155  for  two  amputations  of  a  phalange  of  a  finger,  and  35 
dressings,  was  held  unreasonable  and  reduced  to  $98.     Fifty  dollars  was  a 
reasonable  fee  for  the  service  required  in  an  operation  for  the  radical  cure 
of  hernia,  the  physician  who  performed  the  service  rendering  a  bill  for  $100. 
Shaw  V.  Mass.  Employes'  Insur.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  501   (deci- 
sion of  Com.  of  Arb.). 

4  0  Greenock  v.  Drake,  2  Cal.  I.  A.  C.  Dec.  379. 


§  Tt^8  workmen's  compensation  716^ 

sician's  estimate  of  the  disposition  and  social  qualities  of  the  in- 
surance adjuster  or  attorney.  It  is  not  to  be  determined  by  what 
the  particular  physician  whose  bill  is  being  considered  has  been 
in  the  habit  of  charging  and  collecting  in  like  cases,  A  physician 
who  is  treating  a  compensation  case  is  supposed  to  charge  and  col- 
lect from  the  employer  or  the  employer's  insurer  as  much,  and  only 
as  much,  as  the  profession  in  general  in  his  locality  would  ordi- 
narily charge  and  collect  from  a  workman  of  like  standard  of  liv- 
ing, if  he  was  injured  at  home  and  had  to  pay  his  own  doctor's 
bill."  *^  The  burden  of  proof  to  establish  to  a  reasonable  cer- 
tainty the  reasonableness  of  charges  for  medical  and  surgical  treat- 
ment is  on  the  employe;  *^  but  judicial  notice  may  be  taken  of  such 
information  as  to  such  charges  as  is  a  matter  of  general  public 
knowledge.*^ 

In  California  the  question  of  reasonableness  is  determined,  in 
the  event  of  disagreement,  by  the  medical  director  of  the  Commis- 
sion,** on  the  basis  of  the  schedule  of  reasonable  cost  prepared  by 
the   Commission.*''     The   Commission   may   require  that  itemized 

41  Peterson  v.  H.  B.  Beach  &  Sons,  1  Conn.  Comp.  Dec.  469. 

42  City  of  Milwaukee  v.  Miller,  154  Wis.  652,  144  N.  W.  188,  L.  R.  A.  1916 A, 
1,  Ann.  Cas.  1915B,  847.  The  reasonableness  of  an  employe's  claimed  ex- 
penses reasonably  incurred  for  medical  and  surgical  treatment  being  disputed 
by  credible  evidence,  and  not  supported  by  other  than  opinion  evidence  of 
the  person  most  interested,  the  trial  tribunal  should  apply  ordinary  common 
sense  and  experience  to  the  matter — not  being  bound,  or  necessarily  efficiently 
influenced,  by  the  verification  of  such  interested  one — and  fix  the  allowable 
amount  at  such  sum  as  appears  to  it  to  be  reasonable,  and,  where  the  claim 
is  obviously  exorbitant,  should  not  allow  it,  in  the  whole,  regardless  of  how 
strongly  supported  by  evidence  from  the  mouth  of  the  interested  party.    Id. 

4  3  In  Armenis  v.  Kerr,  1  Conn.  Comp.  Dec.  338,  it  was  held  that  the  Com- 
missioner may  take  judicial  notice  of  such  information  as  to  medical  charges 
as  is  a  matter  of  general  public  knowledge,  and  the  reduction  of  the  physi- 
cian's bill  to  accord  with  the  standard  of  living  and  position  of  the  work- 
man, was  based  upon  such  judicial  notice. 

44  Simpson  v.  Paraffine  Paint  Co.,  1  Cal.  I.  A.  C.  Dec.  76. 

45  The  reasonable  value  of  services  rendered  an  injured  employ^  by  a 
physician  of  his  own  selection  will  be  determined  by  the  Commission  upon 


717  COMPENSATION  §   199 

Statements  of  such  services  be  rendered,  to  insure  that  such  charg- 
es are  made  in  accordance  with  its  schedule.*®  Where  an  injured 
employe  is  treated  by  a  physician  of  his  own  selection,  and  has  con- 
tracted to  pay,  or  has  paid,  for  the  services  of  such  physician  a  sum 
in  excess  of  that  prescribed  by  this  schedule,  he  is  entitled  to  be 
reimbursed  only  to  the  extent  of  the  amount  allowed  by  the  sched- 
ule. As  to  the  balance  the  Commission  cannot  give  any  relief  as 
between  the  physician  and  injured  employe.  The  question  is  one 
of  private  contract,  to  be  determined  elsewhere.*^  A  further  sum 
for  medical  aid  will  be  allowed  under  the  Illinois  Act  where  it  is 
shown  that  it  was  necessary  to  procure  the  service  of  a  physician 
other  than  that  furnished.*^ 

§  199.     Recovery  by  physician 

Where  a  physician  is  entitled  to  an  allowance  for  the  reasonable 
value  of  medical  services  rendered  to  an  employe,  he  may  apply  for 
the  determination  of  his  claim;  *^  but  he  cannot  recover  where  the 
expense  for  treatment  was  not  incurred  by  or  on  behalf  of  the  in- 
jured employe.^''  Nor  can  he  recover  for  services  to  which  the  em- 
ploye is  otherwise  entitled,  or  which  are  free  to  him.^^     His  right 

the  basis  of  the  fee  schedule  adopted  by  it,  which  schedule  has  been  prepared 
to  represent  the  reasonable  cost  of  treatment  rendered  an  injured  man  of  an 
earning  capacity  of  approximately  $1,000  per  year  if  there  were  no  Insur- 
ance carrier  or  employer  to  pay  his  expenses.  Devlin  v.  Smith,  1  Cal.  I.  A. 
C.  Dec.  41S. 

46  Conner  v.  Acme  Cement  &  Plaster  Co.,  1  Cal.  I.  A.  C,  Dec.  143. 

47  Devlin  v.  Smith,  1  Cal.  I.  A.  O.  Dec.  418. 

48  Cegrelski  v.  Lehon  Co.,  Bulletin  No.  1,  111.,  p.  35. 

48  Fly  V.  San  Diego  Transfer  Co.,  2  Cal.  I.  A.  C.  Dec.  714. 
As  to  reasonableness  of  charges,  see  §  19S,  ante. 

50  Mahan  v.  Frankfort  General  Insurance  Co.,  2  Cal.  I.  A.  0.  Dec.  530. 

51  Where  a  member  of  a  fraternal  order,  having  sustained  an  injury, 
called  upon  his  lodge  physician  for  such  medical  services  as  he  was  entitled 
to  receive  free  of  charge  by  reason  of  his  membership,  and  received  such 


§  199  workmen's  compensation  718 

to  a  lien,  and  to  recover,  where  he  is  engaged  by  the  employe,  is 
dependent  upon  the  right  of  the  employe.^^ 

services,  since  no  expense  had  been  incurred  by  the  employ^,  the  physician 
rendering  the  services  had  no  right  of  recovery  against  the  insurance  car- 
rier for  the  reasonable  value  thereof.  Mahan  v.  Frankfort  General  Insur. 
Co.,  2  Cal.  I.  A.  C.  Dec.  530.  Where  the  injured  employ^,  having  paid  a 
regular  monthly  assessment  of  75  cents  to  a  physician  stationed  at  a  work 
camp,  entitling  him  to  treatment  when  injured,  receives  such  treatment  from 
such  physician,  and  without  any  expense  incurred  other  than  the  prior  as- 
sessments, the  employer  is  not  liable  to  the  employe  for  the  value  of  such 
treatment,  there  being  no  medical  expenses  incurred  within  the  meaning  of 
the. Act.    Dahl  v.  Jensen,  2  Cal.  I.  A.  C.  Dec.  749. 

5  2  The  right  of  a  physician  hired  by  an  employe  to  secure  from  the  employ- 
er or  the  latter's  insurance  carrier  the  reasonable  value  of  services  ren- 
dered the  injured  employe  is  derived  through  the  right  of  the  employe  to 
compensation,  and  where  the  employe  is  not  entitled  to  compensation  for 
disability  or  medical  treatment,  his  physician  cannot  recover  in  an  action 
against  the  employer  directly.  Newkirk  v.  Union  Ice  Co.,  1  Cal.  1.  A.  C. 
Dec.  166.  Where  the  employer  is  not  liable  for  medical  services  rendered 
an  injured  employ^  because  of  the  failure  of  the  employ^  to  give  sufficient 
opportunity  by  notice  or  demand,  no  lien  can  be  declared  in  favor  of  the 
physician  upon  the  compensation  due  the  employ^.  Green  v.  Burke,  1  Cal. 
I.  A.  C.  Dee.  591.  The  Act  does  not  authorize  a  lien  where  the  medical 
services  for  which  a  lien  is  sought  were  rendered  after  the  expiration  of 
ninety  days  after  the  injury.  (Wk.  Comp.,  etc..  Act  Cal.  §  29,  subd.  [b] 
[2]).     Id. 

In  Coughlin  v.  R.  Wallace  &  Sons,  1  Conn.  Comp.  Dec.  652,  where  the  em- 
ploye engaged  his  own  physician,  and  the  employer,  on  being  notified  two 
days  later,  made  proper  arrangements  with  its  own  physician  to  treat  the 
injury,  the  employe's  physician  could  not  recover  against  the  employer  for 
services  rendered.  In  Shapiro  v.  New  Haven  Carriage  Co.,  1  Conn.  Comp. 
Dec.  508,  it  was  held  that  where  a  workman  requiring  treatment  for  stomach 
trouble  had  his  injured  finger  treated  at  the  same  time,  without  reporting 
his  injurj'  to  his  employer  in  any  such  way  as  to  indicate  that  medical  treat- 
ment was  necessary,  the  physician  could  not  recover  against  the  employer. 
In  this  case  the  employ^  made  no  claim  for  such  compensation.  In  Ross  v. 
Aberthaw  Construction  Co.,  1  Conn.  Comp.  Dec.  533,  where  it  was  shown  that 
the  employe  was  intoxicated  on  the  morning  of  the  injury,  and  quarrelsome, 
and  had  in  the  course  of  an  altercation  with  the  fellow  workman  who  struck 
him  called  such  workman  a  vile  name,  it  was  held  that,  since  the  injury  did 
not  arise  out  of  and  in  the  course  of  his  employment,  there  could  be  no  re- 
covery against  the  employer  by  the  physician  for  his  services.     In  Racujja 


719  COMPENSATION  §    199 

In  California,  in  order  to  make  a  claim  for  services  in  treating  an 
injury  a  lien  against  the  award,  it  is  essential  that  notice  in  writing 
be  given  to  the  employer  of  the  claim. ^^  An  award  directing  that  a 
physician's  fee  be  paid  directly  is  invalid,  where  it  does  not  fix  the 
amount  of  the  fee,  or  name  the  person  entitled  thereto,  or  show  that 
the  required  written  notice  of  claim  was  given. ^* 

Where  an  injured  workman  was  taken  by  the  employer's  fore- 
man to  a  physician,  who  informed  the  insurance  carrier  that  he 
was  treating  the  workman,  and  made  his  charge  against  the  carrier 
for  the  services,  and  not  against  the  employe,  the  California  Com- 
mission had  no  jurisdiction  to  award  a  lien  to  the  physician  upon 
compensation  due  the  applicant;  the  physician's  compensation  be- 
ing a  question  of  contract  between  the  physician  and  the  em- 
ployer.^^ 

Y.  National  Folding  Box  &  Paper  Co.,  1  Conn.  Comp.  Dec.  522,  wlaere,  with- 
out neglect  or  wrongdoing  on  the  part  of  his  employers  in  providing  medical 
and  surgical  treatment,  the  employe  Incurred  a  debt  of  $30  for  the  services 
of  another  physician,  such  physician  cannot  recover  against  the  employer, 
where  that  employer  had  neither  expressly  nor  impliedly  consented  to  his 
employment.  On  application  to  the  superior  court  for  execution  of  an  award 
against  the  employer  for  medical  services  made  in  Vaughn  v.  American 
Coal  Co.,  1  Conn.  Comp.  Dec.  617,  Judge  Case  declined  to  authorize  an  exe- 
cution in  favor  of  the  physician,  except  in  favor  of  the  actual  claimant,  the 
employe. 

A  doctor,  who  attends  an  employS  of  a  farmer  for  injury  sustained,  can- 
not claim  for  medical  services  rendered,  as  a  farmer  is  not  operating  under 
the  provisions  of  the  Act.    Poling  v.  Brown,  Bulletin  No.  1,  111.,  p.  21. 

A  physician  has  no  direct  cause  of  action  against  an  employer  for  serv- 
ices rendered  an  injured  employ^,  even  though  the  value  of  such  services 
has  been  fixed  by  the  Commission  and  made  a  part  of  the  award,  and  the 
employe  has  attempted  to  assign  that  portion  of  the  award  to  his  physician. 
He  has  only  a  lien  upon  the  award.  Bloom  v.  JafCe,  94  Misc.  Rep.  222,  157 
N.  Y.  Supp.  926. 

53  McCay  v.  Bruce,  2  Cal.  I.  A.  C.  Dec.  975. 

5  4  (Wk.  Comp.  Law,  St.  1913,  p.  294,  §  29)  Pacific  Coast  Casualty  Co.  v. 
Pillsbury  Indus.  Ace.  Com.,  171  Cal.  319,  153  Pac.  24. 

5  5  Paul  v.  Johnson  Bros.,  3  Cal.  I,  A.  C.  Dec.  32. 


§  200  workmen's  compensation  •        720 

§  200.     Services  of  nurse  or  member  of  the  family 

The  employer  or  his  insurance  carrier  are  only  chargeable  for  the 
services  of  nurses  where  the  physician  in  charge  either  authorizes, 
requires,  or  consents  to  the  employment  of  a  nurse. ^®  Expense 
for  services  of  a  nurse,  as  such,  after  the  limit  of  time  fixed  by 
statute,  are  not  chargeable,  nor  at  all  thereafter,  except  by  allow- 
ance of  the  maximum  percentage  of  disability  indemnity. ^^  A  claim 
by  a  member  of  the  family  of  the  injured  employe,  not  a  profes- 
sional nurse,  for  remuneration  for  nursing  done  for  the  employe, 
will  not  be  made  a  charge  against  the  employer  or  insurance  car- 
rier. To  do  this  would  open  a  door  for  unskillful  treatment  and 
charges  that  should  not  be  made  a  burden  upon  industry.  It  is  usu- 
ally to  be  presumed  that  members  of  the  family  and  relatives  will, 
through  their  affection,  render  any  aid  possible  to  the  injured  em- 
ploye,  without  cost."*-^     But,   in   case  of  injury   requiring  hospital 

56  Hughes  V.  Degen  Belting  Co.,  1  Cal.  I.  A.  C.  Dec.  203. 

5  7  City  of  Milwaukee  v.  Miller,  154  Wis.  652,  144  N.  W.  188,  L.  R.  A. 
1916xV,  1,  Ann.  Cas.  1915B,  847. 

5  8  Wayman  v.  Huff,  1  Cal.  I.  A.  C.  Dec.  358. 

A  claim  for  nursing  by  the  injured  employe's  mother  not  allowed,  where 
the  attending  physician  did  not  order  nursing.  Forbes  v.  County  of  Hum- 
boldt, 2  Cal.  I.  A.  C.  Dec.  887.  Where  the  injured  employe  is  nursed  by  his 
sister  at  her  house,  where  he  boarded,  it  being  a  case  which  could  be  ade- 
•quately  treated  at  home  without  a  trained  nurse,  the  sister  is  not  entitled  to 
an  allowance  against  the  employer  for  such  nursing,  she  not  being  a  trained 
nurse.    Jolley  v.  O'Shea,  2  Cal.  I.  A.  C.  Dec.  569. 

Deputy  Commissioner  William  C.  Richards,  of  Syracuse,  disallowed  a  claim 
presented  by  a  wife  for  nursing  her  husband,  where  she  was  not  a  graduate 
nurse.  (Wk.  Comp.  Act,  §§  13,  24)  Dunham  v.  Phelan  &  Sullivan,  The  Bul- 
letin, N.  Y.,  vol.  1,  No.  9,  p.  30. 

No  allowance  for  nursing  services  will  be  made,  where  they  were  x-endered 
by  a  member  of  the  family,  who  rendered  them  in  connection  with  her  du- 
ties as  housekeeper.  In  re  David  Bums,  vol.  1,  No.  7,  Bui.  Ohio  Indus. 
Com.  p.  5. 

The  common  rule  in  the  law  of  negligence  that  the  wrongdoer  cannot  miti- 
gate his  liability,  by  taking  advantage  of  relief  furnished  by  one's  wife,  fam- 
ily, friends,  or  otherwise,  has  no  application  to  cases  under  the  Workmen's 


721  COMPENSATION  §   201 

treatment,  an  award  will  be  made  for  services  rendered  and  appli- 
ances furnished  to  the  injured  employe  by  another  member  of  his 
family  in  lieu  of  such  treatment  and  in  accordance  with  the  consent 
and  direction  of  the  physician  in  charge,  especially  where  the  mem- 
ber rendering  such  services  gives  up  his  regular  employment,  in 
order  to  do  so.^^  Also  where  the  attending  physician  advises,  but 
does  not  insist,  that  the  patient  be  sent  to  a  hospital,  and  the  family 
or  dependents  do  not  have  him  removed,  and  there  is  no  specific  de- 
mand that  he  be  sent  to  a  hospital,  or  a  specific  refusal  to  do  so,  the 
insurance  carrier  is  not  exempted  from  the  requirement  to  pay  for 
the  reasonable  value  of  services  rendered  to  the  patient  at  his 
home.*^** 


Division  II. — Funeral  Expe;nsi:s 

§  201.     Provisions  allowing  funeral  expenses 

A  provision  making  the  employer  liable  for  funeral  expenses  does 
not  take  away  the  right  to  the  custody  and  burial  of  the  dead,  or  au- 
thorize the  employer  to  contract  for  funerals  with  an  undertaker  in 
such  a  way  as  to  arbitrarily  fix  the  number  of  carriages  or  to  decide 
in  certain  cases  that  no  carriages  shall  be  provided.  These  are  mat- 
ters for  the  family  or  next  of  kin  to  decide  and  arrange  for,  provided 
the  expense  is  reasonable  and  does  not  exceed  the  limit  fixed  by 

Compensation  Act.  That  eliminates  all  penalizing  features,  and  limits  com- 
pensation to  the  injured  person,  aside  from  indemnity  for  disability,  to  ex- 
penses or  liabilities  actually  incurred.  City  of  Milwaukee  v.  Miller,  151 
Wis.  652,  144  N.  W.  188,  L.  R.  A.  1916A,  1,  Ann.  Cas.  1915B,  847. 

5  9  Kelley  v.  Manley,  2  Cal.  I.  A.  C.  Dec.  318. 

Where  an  injured  employe  required  a  nurse's  care,  and  was  cared  for  by 
the  woman  keeping  the  boarding  house  where  he  lived,  she  not  being  a  trained 
nurse,  but  giving  up  her  work  to  attend  him,  the  employer  is  chargeable  for 
an  allowance  for  three  weeks'  nursing  at  $12  per  week.  Dexter  v.  People's 
Cloak  &  Suit  Co.,  2  Cal.  I.  A.  Q.  Dec.  567. 

80  Hughes  V.  Degen  Belting  Co.,  1  Cal.  I.  A.  C.  Dec.  203. 
HoN.CoMP. — 46 


§  201  workmen's  compensation  T22 

law.^^  No  award  can  be  made  for  services  rendered  by  a  relative 
of  the  deceased  workman  in  connection  with  his  funeral,  where  it 
does  not  appear  that  any  money  was  expended  by  him.®^  The 
present  New  Jersey  Act  provides  for  burial  expenses  in  all  cases, 
but  before  the  amendment  of  1914,  these  expenses  were  not  allow- 
able in  that  state  unless  there  were  no  dependents.^^  Where  the 
applicant  has  not  personally  incurred  the  burial  expenses  for  the 
burial  of  the  deceased  employe,  and  his  award  as  a  dependent  is 
small,  and  the  undertaker  has  already  received  more  than  the  rea- 
sonable burial  expense  fixed  by  the  California  Act,  none  of  a  large 
balance  due  will  be  recognized  as  a  lien  on  the  award.^*  The  pro- 
visions of  this  Act  as  to  liens  for  burial  expenses  do  not  allow  a  lien 
or  an  order  for  the  direct  payment  to  the  undertaker  of  cost  of  a 

61  Konkel  v.  Ford  Motor  Co.,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  29. 

A  workman  was  killed  while  at  work  and  left  no  dependents.  In  accord- 
ance with  section  8,  pt.  2,  of  the  Compensation  Act,  his  employer  was  liable 
for  the  funeral  expenses,  not  exceeding  $200.  He  made  a  contract  with  an 
undertaker,  the  applicant,  to  furnish  and  conduct  the  funeral  for  $75,  and 
further  agreed  to  pay  $15  for  the  cemetery  lot.  Applicant  presented  a  bill 
for  $104,  stating  that  the  extra  $14  was  for  three  carriages  furnished  for 
friends  of  the  deceased  who  attended  the  funeral.  The  employer  refused  to 
pay  the  extra  $14,  claiming  that  it  was  an  overcharge,  and  that  the  agree- 
ment excluded  carriages.  The  Board  held  that  the  right  to  the  custody  and 
burial  of  the  dead  belonged  to  the  family,  next  of  kin,  near  relatives,  and 
friends  of  the  deceased,  and  that  the  Compensation  Act  does  not  assume  to 
take  away  or  interfere  with  this  important  right.     Id. 

6  2  Tirre  v.  Bush  Terminal  Co.,  172  App.  Div.  386,  158  N.  Y.  Supp.  883. 

63  Prior  to  the  amendment  of  1914  to  the  Workmen's  Compensation  Act, 
funeral  expenses  were  not  recoverable,  when  there  are  dependents  to  whom 
compensation  has  been  awarded.  (P.  L.  1914,  p.  499)  HammUl  v.  Pennsyl- 
vania R.  R.  Co.,  87  N.  J.  Law,  388,  94  Atl.  313 ;  Taylor  v.  Seabrook,  87  N.  J. 
Law,  407,  94  Atl.  399.  P.  L.  1911,  p.  134,  as  amended  by  P.  L.  1913,  p.  302, 
§  2,  pars.  11,  12,  14a,  did  not  obligate  the  employer  to  pay  burial  expenses, 
where  there  were  dependents  to  whom  compensation  had  been  awarded.  Cen- 
tral R.  Co.  of  N.  J.  V.  Kellett,  86  N.  J.  Law,  84,  90  Atl.  1005. 

6  4  Heffernan  v.  Morse  Detective  &  Patrol  Service  Co.,  2  Cal.  I.  A.  C.  Dec. 
364. 


723  COMPENSATION  §    201 

burial  lot  and  transportation  of  the  remains  in  an  amount  exceeding 
$100,  unless  the  person  entitled  to  the  death  benefit  so  requests,®^ 
Where  there  are  no  surviving  dependents,  an  award  for  burial  ex- 
penses may  be  made  in  Connecticut.^^ 

6  5  (Wk.  Comp.  Act,  §  15  [c])  Sigman  v.  Columbia  Oil  Producing  Co.,  3  Cal. 
I.  A.  C.  Dec.  2. 

66  Pelham  v.  Burstein,  1  Conn.  Comp.  Dec.  49. 


202 


WORKMEN  S  COMPENSATION 


724 


CHAPTER  VIII 

SETTLEMENT  OF  CONTROVERSIES 

Section 

202.  Article  I. — Settlement  by  agreement. 

203-20S.  Article  II.— Remedies. 

209.  Article  III. — Legal  proceedings  in  general. 

210-215.  Article  IV.— Notice  and  claim, 

21&-222.  Article  V.— Evidence. 

223-236.  Article  VI. — Proceedings  before  special  tribunal. 

237-250.  Article  VII. — Proceedings  In  court. 
237-238.  Division  I. — Original  proceedings. 

239-245.  Division  II. — Review  of  decision  of  special  tribunal. 

246-250.  Division  III. — Review  by  higher  court. 

251-252.  Article  VIII. — Costs  and  attorney's  fees. 


ARTICLE  I 

SETTLEMENT  BY  AGREEMENT 


Section 
202.     Amicable  settlements. 


§  202.     Amicable  settlements 

When  amicable  agreements  in  settlement  of  injuries  are  made 
under  statutory  authority,  the  terms  of  the  statute  must  be  com- 
plied with,^    In  some  states  it  is  essential  that  such  agreements  be 


1  The  statute  recognizes  and  provides  for  agreements  in  settlement  of  in- 
juries between  the  association  and  the  employe,  if  entered  into  in  accordance 
with  the  terms  of  the  Act.  (St.  1911,  c.  751,  pt.  3,  §  15;  part  3,  §  4,  as 
amended  by  St.  1912,  c,  571,  §  9 ;  and  pt.  5,  §§  2,  3)  Pigeon's  Case,  216  Mass. 
51,  56,  102  N.  E.  932,  Ann.  Cas.  1915A,  737;  Cripp's  Case,  216  Mass.  58G, 
5S8,  104  N.  E.  5G5,  Ann.  Cas.  lOl-jB,  S2S;  Barry  v.  Bay  State  St.  Ry.  Co.. 
222  Mass.  366,  110  N.  E.  1031. 

In  Miller  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec.  349,  where  the 
injured  workman  had  signed  a  release  in  consideration  of  $400,  relinquishing 
all  claims  against  the  respondent,  but  such  amount  was  not  in  accord  with 
the  Compensation  Act,  an  award  was  made  for  the  proper  amount,  deduct- 
ing therefrom  the  $400  already  paid  to  the  claimant;    the  Commission  hold- 


725  SETTLEMENT  OF  CONTROVERSIES  §  202 

presented  to  a  court  or  commission  and  approved  before  the}^  be- 
come valid  and  binding-.^     Reasonable  settlements,  made  in  good 

ing  that  the  Compensation  Act  was  part  of  the  contract  of  employment,  and 
that  any  settlement  made  must  be  strictly  in  accordance  with  the  Act  (Part 

B,  §  2,  Wk.  Comp.  Act). 

In  Haberski  v.  Peck,  Stowe  &  Wilcox  Co.,  1  Conn.  Comp.  Dec.  278,  it  was 
held  that  a  Commissioner  may  reopen  a  claim  settled  by  voluntary  agree- 
ment, where  it  appears  that  such  agreement  does  not  conform  to  the  Act.  In 
this  case  it  was  held  suiScient  under  the  Act,  and  further  compensation  was 
denied. 

2  Where  an  insurance  carrier  makes  a  cash  settlement  with  an  injured  em- 
ploye, in  satisfaction  of  all  claim  as  indemnity  for  permanent  partial  dis- 
ability, such  agreement  is  voidable,  unless  made  with  the  approval  of  the 
California  Commission,  and  will  be  disregarded  when  in  opposition  to  the 
provisions  of  the  Compensation  Act.    Foutes  v.  Scott's  Express  Co.,  2  Cal.  I.  A. 

C.  Dec.  829.  The  injured  employe,  in  spite  of  any  unapproved  agreement,  can 
at  any  time  claim  and  have  his  full  rights  determined  by  the  Commission. 
An  unapproved  settlement  will  expose  the  employer  or  insurance  carrier  to 
the  risk  of  again  paying  compensation  in  accordance  with  the  provisions  of 
the  Compensation  Act.  Id.  The  execution  of  a  release  in  full  settlement 
of  liability  for  compensation  by  an  injured  employ^,  in  consideration  of  the 
payment  of  a  sum  of  money,  is  not  binding  in  the  absence  of  approval  thereof 
by  the  Commission.  If  there  is  no  such  approval,  an  application  may  be 
subsequently  filed,  and  the  total  amount  which  may  be  due  to  the  applicant 
under  the  law  will  be  awarded,  deducting  therefrom  any  payments  previously 
made.    Barozzi  v.  Bertin  &  Lepori  Co.,  1  Cal.  I.  A.  C.  Dec.  484. 

Under  section  23  of  the  Illinois  Act,  an  employe  cannot  waive  any  compen- 
sation he  may  be  entitled  to,  without  the  approval  of  the  Board.  If  an  em- 
ploye under  the  Act  has  sustained  an  injury,  and  has  not  been  paid  all  the 
compensation  he  is  entitled  to,  any  settlement  made  by  him,  or  release  execut- 
ed, without  the  approval  of  the  Board,  is  not  binding.  Cass  v.  Great  I^kes 
Dredge  &  Dock  Co.,  Bulletin  No.  1,  111.,  p.  99 ;  Fitt  v.  Central  Illinois  Public 
Service  Co.,  Bulletin  No.  1,  111.,  p.  129.  Such  release  acts  only  as  a  receipt, 
and  the  amount  paid  should  be  deducted  from  the  total  amount  payable. 
Fitt  V.  Central  Illinois  Public  Service  Co.,  Bulletin  No.  1,  111.,  p.  129.  Sec- 
tion 18  of  the  Act,  which  provides,  "All  questions  arising  under  this  Act,  if 
not  settled  by  agreement  of  the  parties  interested  therein,  shall,  except  as 
otherwise  provided,  be  determined  by  the  Industrial  Board,"  is  qualified  by  sec- 
tion 23,  which  prohibits  waiver  of  any  provisions  of  the  Act,  except  with 
the  approval  of  the  Board.  McClennan  v.  Allith  Prouty  Co.,  Bulletin  No.  1, 
111.,  p.  116.  No  settlement  wherein  any  amount  of  compensation  is  waiA^ed, 
will  be  final  without  such  approval.     Id. 

Inasmuch  as  the  settlement  made  with  the  applicant  was  made  without  ref- 


§  202  workmen's  compensation  726 

faith  and  not  in  violation  of  the  statute,  will  ordinarily  be  upheld,' 
but  a  settlement  which  exposes  the  employe  to  loss  or  hardship  and 
is  not  in  the  public  interest  will  not  be  approved.* 

erence  to  the  Workmen's  Compensation  Act,  such  settlement  would  not  be- 
come binding  until  approved  bj'  the  Industrial  Accident  Board;  but  the 
amount  will  be  treated  as  equitably  applying  upon  the  compensation  to  which 
she  was  entitled  under  the  Act.  Marshall  v.  City  of  Detroit,  Mich.  Wk.  Comp. 
Cases  (1916),  57. 

In  State  ex  rel.  Duluth  Diamond  Drilling  Co.  v.  District  Court  of  St.  Louis 
County,  129  Minn.  423,  l52  N.  W.  S3S,  the  Supreme  Court  said:  "The  statute 
contemplates  that  the  court  shall  supervise  and  control  all  matters  and  pro- 
ceedings under  the  Act.  In  case  the  parties  effect  an  amicable  settlement, 
such  settlement  must  be  presented  to  the  court,  and  be  approved  by  him  as 
in  accordance  with  the  Act,  before  it  becomes  valid  and  binding." 

Where  an  employer  paid  a  workman's  attorney  $25  as  a  compromise  ad- 
justment of  his  claim,  $15  of  which  was  for  medical  services,  such  agi-eement 
did  not  release  the  employer  under  the  Wisconsin  Act  for  two  reasons: 
First,  that,  the  workman  being  a  minor,  the  agreement  could  only  operate 
to  i-educe  the  amount  of  his  legal  claim,  without  affecting  the  right  itself; 
and,  second,  because  it  was  not  filed  with  the  Commission  for  review  as  re- 
quired by  the  Act.  McCutcheon  v.  Marinette,  Tomahawk  &  Western  R.  R.  Co., 
Rep.  Wis.  Indus.  Com.  1914-15,  p.  13. 

3  "There  is  nothing  in  the  Act  to  prevent  an  adult  workman,  before  entering 
a  claim,  and  before  any  weekly  payment  has  been  made,  from  coming  to  an 
arrangement,  by  way  of  compromise  with  his  employer,  to  accept  a  sum  of 
money  in  satisfaction  of  his  claims."  Cozens-Hardy,  M.  R.,  in  Ryan  v. 
Hartly  (1912)  5  B.  W.  C.  C.  407,  C.  A.  Where  a  workman,  who  had  not  claim- 
ed nor  been  given  compensation  for  his  injury,  accepted  a  sum  equal  to  a 
week's  wages  in  satisfaction  of  his  claim,  he  was  .entitled  to  do  so.    Id. 

Approved  settlements:  A  settlement  whereby  the  workman  received  $1,040.- 
07  for  the  loss  of  an  eye,  due  to  a  fragment  of  steel  lodging  in  it  while  he 
was  testing  a  rivet.  Southerland  v.  Cowell  Lime  &  Cement  Co.,  2  Cal.  I.  A. 
C.  Dec.  994.  A  settlement  agreement  to  pay  $433.65  for  medical  expenses  and 
$11.25  weekly  for  146  weeks,  for  a  fracture  of  a  workman's  leg  between  the 
knee  and  ankle.  Pennington  v.  Geo.  W.  Pennington  Sons,  Inc.,  2  Cal.  I.  A. 
C.  Dec.  994.  A  compromise  agreement  whereby  the  claimant,  a  waitress,  re- 
ceived $100  for  injuries  in  the  thigh  due  to  the  accidental  discharge  of  a  rifle 

4  The  Commission,  and  not  the  employer  or  insurer,  is  by  virtue  of  the  Act 
made  responsible  for  the  execution  of  its  provisions,  and  vmless  a  settlement 
is  in  the  public  interest  and  does  not  expose  the  employ^  to  loss  or  hardslaip, 
It  will  be  disregarded  whenever  the  public  interest  requires.  Fontes  v.  Scott's 
Express  Co.,  2  Cal.  I.  A.  C.  Dec.  829. 


727  SETTLEMENT  OF  CONTROVERSIES  §  202 

Relative  to  the  agreement  authorized  by  the  Connecticut  Act, 
Commissioner  Beers  said:  "It  is  quite  true  that  the  agreement  con- 
templated by  the  Compensation  Act  is  not  a  compromise  in  the 
common-law  sense  of  the  term,  and  is  not  expected  to  follow  a  se- 
ries of  dickerings  on  one  side  and  the  other,  where  the  claimant 
is  trying  to  get  as  much  as  he  can  and  the  respondent  is  trying  to 
get  off  as  cheaply  as  possible.     However,  where  parties  appear  by 

by  a  fellow  employ^.  Curry  v.  Hull,  2  Cal.  I.  A.  C.  Dec.  994.  An  agreement 
awarding  the  workman's  dependent  family  $3,125,  in  a  lump  sum,  for  his 
accidental  death.  Clark  v.  Fruit  Dispatch  Co.,  2  Cal.  I.  A.  C.  Dec.  993. 
Connecticut.  In  Treiber  v.  Weibel  Brewing  Co.,  1  Conn.  Comp.  Dec.  547, 
where  the  employe,  suffering  a  strain  of  his  back  in  the  course  of  his  employ- 
ment, had  for  many  years  been  subject  to  rheumatism  and  sciatica,  and  it 
was  difficult  to  discover  just  how  far  the  incapacity  was  due  to  one  cause 
or  the  other,  a  compromise  agreement  for  one-half  average  weekly  wages 
for  10  weeks  and  full  medical  expense  was  approved.  In  Daigle  v.  Steele  & 
Johnson  Mfg.  Co.,  1  Conn.  Comp.  Dec.  196,  where  the  cause  of  the  workman's 
death  was  exceedingly  uncertain,  and  both  parties  agreed  that  it  would  be 
impossible  to  prove  a  causal  connection  between  the  injury  and  death,  a  com- 
promise of  $5  per  week  for  38  weeks  was  approved.  In  Trumbull  v.  Trum- 
bull Motor  Car  Co.,  1  Conn.  Comp.  Dec.  304,  brought  by  the  widow  of  re- 
spondent's employ^,  drowned  by  the  sinking  of  the  Lusitania,  a  settlement  per- 
mitting the  insurer  to  deposit  with  a  trust  company  a  lump  sum  equal  to  the 
present  worth  of  the  payments  awarded,  to  be  paid  by  them  to  the  claimant 
as  such  payments  fell  due,  was  approved,  and  the  amount  of  such  lump  sum 
determined.  In  Allaire  v.  Copping,  1  Conn.  Comp.  Dec.  288,  where  the  claim 
made  was  of  doubtful  character,  and  both  parties  agreed  that  it  would  prob- 
ably be  impossible  to  prove  any  causal  connection  between  the  injury  and  em- 
ployment, but  respondent  offered  a  lump  sum  of  $172.50  in  compromise  set- 
tlement of  the  claim,  such  settlement  was  approved.  In  Flotat  v.  Union 
Hardware  Co.,  1  Conn.  Comp.  Dec.  5,  it  was  held  that,  where  the  insurer  agreed 
to  pay  the  workman  one-half  his  average  weekly  wages  for  a  period  of  9V2 
weeks  as  compensation  for  an  accident  whereby  his  thumb  was  slit  half  way 
to  the  first  joint,  this  amount  equaling  that  awarded  by  the  schedule  for 
the  loss  of  one-half  the  first  phalange  of  the  thumb,  such  agreement  should 
be  approved.  In  Coons  v.  John  De  Michiel  &  Bros.,  1  Conn.  Comp.  Dec. 
446,  where  claimant,  an  American  47  years  of  age  and  a  man  of  intelligence, 
alleging  loss  of  sight  of  his  eye,  but  realizing  the  difficulty  of  proving  that 
the  loss  was  due  to  the  injury  received,  agreed  to  accept  $450  in  full  settle- 
ment, such  compromise  was  approved,  though  he  would  have  been  entitled 
to  more,  had  he  been  able  to  prove  his  case. 
As  to  release,  see  §  189,  ante. 


§  202  workmen's  compensation  T28 

counsel,  it  is  perfectly  legitimate  for  them  to  make,  under  the  ad- 
vice of  counsel  and  after  a  fair  and  frank  statement  to  the  Com- 
missioner, agreements  as  to  facts,  and  unite  in  requesting  awards. 
In  the  process  of  making  these  agreements,  it  is  perfectly  legal 
and  proper  for  counsel  to  bear  in  mind  that  a  fact  which  cannot  be 
proven  does  not  for  all  practical  purposes  exist,  and  to  a  certain 
extent  to  estimate  chances,  and  bear  those  chances  in  mind  in  tak- 
ing certain  positions  as  to  the  facts  before  a  Commissioner.  Any 
other  rule  would  require  a  contest  on  each  relevant  point  carried 
out  to  the  bitter  end,  and  would  ignore  that  policy  of  give  and  take 
which  is  a  proper  incident,  not  only  of  most  business  transactions, 
but  of  most  human  transactions."  ^  In  a  proceeding  under  this 
Act,  where,  owing  to  a  mistake  of  facts,  the  insurer,  not  knowing 
that  the  claimant  had  returned  to  work,  continued  to  pay  compen- 
sation under  a  voluntary  agreement  for  total  incapacity,  the  amount 
so  overpaid  was  ordered  refunded.*^ 

Under  a  statute  providing  that  the  compensation  to  be  made  may 
be  determined  by  agreement,  by  arbitration,  or,  "in  default  of  agree- 
ment or  arbitration,  be  determined  and  enforced  by  action  in  any 
court  of  competent  jurisdiction,"  an  effort  to  agree  on  compensa- 
tion or  procure  it  by  arbitration  is  not  a  prerequisite  to  the  bringing 
of  an  action  to  enforce  it.''^ 

Under  the  provision  of  the  Wisconsin  Act  that  "every  compro- 

e  Fiorio  v.  Ferrie,  1  Conn.  Comp.  Dec.  459. 

6  Brown  v.  Sheffield  Scientific  School,  1  Conn.  Comp.  Dec.  419. 

7  (Laws  1911,  c.  21S,  §  3G).  Tlie  statute  does  not  provide  that  an  effort  to 
agree  or  to  procure  an  arbitration  is  a  prerequisite  to  the  bringing  of  an  ac- 
tion. It  is  true  that  in  most  cases  compensation  is  adjusted  by  agreement, 
but  adjustment  by  either  agreement  or  arbitration  involves  the  voluntary 
action  or  consent  of  the  parties,  and  nothing  in  the  Act  indicates  that  either 
is  or  can  be  compelled  to  adopt  one  method  of  adjustment  rather  than  an- 
other, or  that  an  effort  to  obtain  one  must  be  made  before  another  is  avail- 
able. Ackerson  v.  National  Zinc  Co.,  96  Kan.  781,  153  Fac.  530;  Halverhout 
V.  S.  W.  Milling  Co.,  97  Kan.  484,  155  Fac.  916.  The  phrase  "in  default  of 
•arbitration"  means  practically  the  same  as  though  the  words  "in  the  absence 
or  omission  of  an  agreement  or  arbitration"  had  been  used.     Id- 


729  SETTLEMENT  OP  CONTROVERSIES  §  202 

mise  of  any  claim  for  compensation  *  *  *  shall  be  subject  to 
be  reviewed  by  and  set  aside,  modified  or  confirmed  by  the  Com- 
mission upon  application  made  within  one  year  from  the  time  of 
such  compromise,"  where  a  compromise  was  agreed  on  and  con- 
firmed  without  a  hearing,  it  could  properly  be  set  aside  within  a 
year,  though  the  claimant,  to  secure  a  second  award,  proceeded  as 
if  making  an  original  claim. ^ 

The  Michigan  Act  contemplates  an  agreement  and  settlement 
made  without  contingency  or  condition,  and  not  one  based  on  a  pos- 
sible or  probable  event  that  may  render  it  inoperative.^  A  settle- 
ment agreement  procured  through  misrepresenting  to  the  work- 
man his  legal  rights  may  be  set  aside  by  the  Industrial  Board.^" 
An  agreement  between  a  workman  and  the  employer's  insurer, 
when  entered  into  under  this  Act  after  ample  opportunity  for  in- 
vestigation, and  approved  by  the  Industrial  Accident  Board,  and 
an  order  for  compensation  entered  pursuant  thereto,  is  conclusive, 
in  a  subsequent  proceeding  to  terminate  com.pensation,  that  the 
cause  of  the  injury  to  the  workman's  eye  was  a  splash  of  molten 
lead,  and  that  the  defect  therein  did  not  result  from  a  cataract.^^ 

8  Jilenominee  Bay  Shore  Lumber  Co.  v,  Indus.  Com.,  162  Wis.  344,  156  X. 
W.  151. 

9  Carpenter  v.  Detroit  Forging  Co.  (Micli.)  157  N.  W.  374. 

10  Id. 

11  (Pub.  Acts  1912,  Ex.  Sess.,  No,  10)  Spooner  v.  Estate  of  P.  D.  Beokwitli, 
183  Mich.  323,  149  N.  W.  971. 


§  203  .workmen's  compensation  730 

ARTICLE  II 


REMEDIES 

Section 

203. 

Deprivation  of  other  remedies. 

204. 

Willful   and   intentional   injuries. 

205. 

Washington. 

206. 

New  York. 

207. 

Arizona. 

208. 

Election  of  remedies  after  event. 

§  203.     Deprivation  of  other  remedies 

»  This  legislation  is  usually  substitutional,  rather  than  supple- 
mental or  cumulative,  and  therefore  exclusive^-  of  other  statutory^^ 
and  common-law  remedies,  so  that,  where  the  parties  are  subject 

12  The  remedy  afforded  by  the  Workmen's  Compensation  Act,  in  cases 
where  the  employer  and  employe  have  elected  to  come  within  its  provisions, 
is  exclusive.  (Laws  1911,  c.  218,  as  amended  by  Laws  1913,  c.  216)  McRob- 
erts  V.  National  Zinc  Co.,  93  Kan.  364,  144  Pac.  247;  Shade  v.  Cement  Co., 
92  Kan.  146,  139  Pac.  1193,  Ann.  Rep.  Kan.  B.  of  L.  1913,  p.  184.  The  Legis- 
lature intended  by  this  Act  to  take  away  from  employes  who  become  sub- 
ject to  its  provision  all  other  remedies  against  their  employers  for  injuries 
happening  in  the  course  of  their  employment  and  arising  therefrom,  and  to 
substitute  for  such  remedies  the  wider  compensation  given  by  the  Act.  King 
V.  Viscoloid  Co.,  219  Mass.  420,  106  N.  E.  988.  Since  the  adoption  of  the 
Minnesota  Compensation  Act,  the  questions  of  liability  and  the  amount 
thereof  are  to  be  determined  by  the  Compensation  Act.  Lindstrom  v.  Mu- 
tual S.  S.  Co.  (Minn.)  156  N.  W.  669.  The  purpose  and  effect  of  the  Work- 
men's Compensation  Act  is  to  control  and  regulate  the  relations  between  an 
employer  and  his  employes.  As  between  them  the  remedies  there  provided 
are  exclusive,  when  both  are  under  the  Act  at  the  time  of  the  accident.  Smale 
V.  Wrought  Washer  Mfg.  Co.,  160  Wis.  331,  151  N.  W.  803.  Where  an  em- 
ploye is  embraced  within  the  provisions  of  the  federal  Compensation  Act, 
and  is  injured,  the  time  lost  can  only  be  paid  in  the  manner  and  in  accord- 
ance with  the  conditions  named  in  that  Act.  (Dec.  Comp.  of  Treas.)  Op.  Sol. 
Dept.  of  L.  (1915)  785. 

13  Where  a  deceased  employ^  by  his  agreement,  either  express  or  implied, 
had  accepted  and  become  bound  by  the  provisions  of  section  2  of  the  Work- 
men's Compensation  Act  (P.  L.  1911,  p.  136),  his  personal  representatives 
cannot  maintain  an  action  under  the  Death  Act  (P.  L.  1848,  p.  151 ;  2  Comp. 


731  SETTLEMENT  OF  CONTROVERSIES  §  203 

to  a  Compensation  Act,  all  their  rights  arising  under  it  are  to  be 
settled  by  the  agencies  there  provided,  and  not  as  in  actions  at 
common  law.^*  Acts  held  to  be  cumulative  and  alternative  do  not 
impair  the  workman's  common-law  remedy,  except  where  he  elects 
to  receive  compensation.^^  But  where  both  employer  and  employe 
have  elected  to  come  within  and  be  bound  by  the  provisions  of  such 
an  Act,  the  action  must  be  brought  pursuant  to  and  in  accordance 
with  its  terms,  while,  when  the  employer  has  elected  not  to  be 
bound,  the  parties  are  remitted  to  their  actions  at  law  and  are  gov- 
erned in  all  respects  by  the  rules  and  principles  of  law  applicable 
to  such  actions,  excepting  alone  as  to  the  matter  of  the  defenses 
of  assumed  risk,  fellow  servant,  and  contributory  negligence.^^ 
In  some  states,  both  the  common-law  action  for  damages  and  the 

St.  1910,  p.  1907)  for  damages  for  death,  even  though  the  only  dependents 
decedent  left  surviving  him  were  aliens,  not  residents  of  the  United  States. 
De  Biasi  v.  Normandy  Water  Co.  (D.  C.)  228  Fed.  235 ;  Gregutis  v.  Waclark 
Wire  Works,  86  N.  J.  Law,  610,  92  Atl.  354. 

14  Young  V.  Duncan,  218  IMass.  346,  106  N.  E.  1. 

Plaintiff,  having  alleged  that  he  has  elected  to  apply  to  the  Industrial  Ac- 
cident Commission  for  compensation,  cannot  bring  an  action  under  the  Em- 
ployers' Act,  unless  he  shows  by  his  pleading  and  proof  that  the  Industrial 
Accident  Commission  has  determined  that  the  injury  was  caused  in  whole 
or  in  part  by  the  failure  of  the  employer  to  install  and  maintain  the  safety 
appliances  required  by  that  Act.  Jenkins  v.  Carman  Mfg.  Co.  (Or.)  155  Pac. 
703. 

15  The  rights  of  the  servant  under  this  statute,  and  of  the  servant  as  an 
individual  under  the  common  law  or  the  statutes,  are  alike  remedies  open 
to  him.  Matter  of  Jensen,  215  N.  Y.  514,  109  N.  E.  600,  D.  R.  A.  1910A,  403, 
Ann.  Cas.  1916B,  276.  The  Act  is  but  cumulative  and  alternative,  and  does 
not  impair  the  latter  remedy.  The  Act  afCects  such  remedy  only  when  the 
individual  as  a  servant  elects  to  receive  compensation  under  the  Act.  The 
reason  for  the  statutory  declaration  as  to  election  is  founded  upon  the  com- 
mon-law rule  that  there  should  not  be  a  double  satisfaction  for  the  same  in- 
jury. Walsh  V.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  204  N.  Y.  58,  62,  63,  97  N.  E. 
408,  37  L.  R.  A.  (N.  S.)  1137;  Gambling  v.  Haight,  59  N.  Y.  354;  Miller  v. 
New  York  Rys.  Co.,  171  App.  Div.  316,  157  N.  Y.  Supp.  200. 

16  Crooks  v.  Tazewell  Coal  Co.,  263  111.  343,  105  N.  E.  132,  Ann.  Cas.  1915C, 
304. 


§  203  workmen's  compensation  732 

statutory  right  of  action  for  death  are  abolished,  where  the  Com- 
pensation Act  affords  a  remedy,  not  only  as  against  the  employer, ^^ 
but  as  against  a  third  person. ^^  It  is  otherwise  where  the  Com- 
pensation Act  aft'ords  no  such  remedy.^®     The  right  to  compen- 

17  Gregutis  v.  Waclark  Wire  Works,  supra. 

Where,  ou  the  death  of  a  workman,  there  is  nothing  to  prevent  the  appli- 
cation of  section  2,  his  administrator  cannot  sue  the  employer  under  the 
Death  Act.  (Wk.  Comp.  Act  N.  J.  §  2)  De  Biasi  v.  Normandy  Water  Co.  (D. 
C.)  228  Fed.  235. 

18  The  right  of  civil  action  for  the  death  of  a  workman,  where  the  acci- 
dent occurs  at  the  plant  of  the  employer,  is  abolished  by  the  Workman's 
Compensation  Act,  not  only  as  against  the  employer,  but  as  against  a  third 
person.  (Sess.  Laws  Wash.  1911,  c.  74,  §§  3,  5)  Meese  v.  Northern  Pac.  Ry. 
Co.  (D.  C.)  206  Fed.  222.  An  action  could  not  be  maintained  against  the 
physician  for  aggravation  of  the  injuries ;  such  aggravation  being  covered  by 
the  compensation  paid.  Ross  v.  Erickson  Construction  Co.,  89  Wash.  634, 
155  Pac.  153.  An  employe  cannot  hold  the  president  of  the  corporation  em- 
ploying him  individually  liable  for  his  injuries.  Peet  v.  Mills,  76  Wash. 
437,  136  Pac.  685,  L.  R.  A.  1916A,  358,  Ann.  Cas.  1915D,  154.  The  Act  con- 
tains its  own  declaration  of  legislative  policy,  in  reciting  in  section  1  that 
the  common-law  system,  in  dealing  with  actions  by  employes  against  em- 
ployers for  injuries  received  in  hazardous  employment,  is  inconsistent  with 
the  modern  industrial  conditions,  uneconomic,  unwise,  and  unfair,  and  that 
as  the  welfare  of  the  state  depends  upon  its  industries,  and  even  more  upon 
the  welfare  of  its  workingmen,  the  state  of  Washington,  in  the  exercise  of 
its  police  and  sovereign  power,  declares  Its  policy  to  mthdraw  all  phases  of 
the  premises  from  private  controversy,  regardless  of  questions  of  fault,  and 
to  the  exclusion  of  every  other  remedy,  proceeding,  or  compensation,  except 
as  provided  in  the  act,  "and  to  that  end  all  civil  actions  and  civil  causes  of 
action  for  such  personal  injuries  and  all  jurisdiction  of  the  courts  of  the 
state  over  such  causes  are  hereby  abolished,  except  as  in  this  Act  provid- 
ed."    Id. 

19  The  Connecticut  Act  provides  that  any  employer  who  shall  not  comply 
with  the  insurance  requirements  of  the  Act — i.  e.,  either  furnish  proof  of  his 
financial  ability  to  pay  compensation  direct  to  his  employes,  or  file  accept- 
able security  guaranteeing  the  performance  of  his  obligation,  or  take  out  in- 
surance on  his  liability — shall  be  liable  as  he  would  be,  had  he  not  accepted 
part  B,  but  does  not  relieve  him  from  liability  under  part  B  to  compensate 
his  employe  for  injuries  for  which  the  latter  could  not  recover  at  common 
law.  (Wk.  Comp.  Act,  pt.  B,  §§  30,  42)  Bayon  v.  Beckley,  89  Conn.  154,  93 
Atl.  139.    The  right  of  a  workman  to  recover  for  an  injury  not  covered  by 


733  SETTLEMENT  OF  CONTROVERSIES  §  203 

sation  is  purely  statutory,2°  and  therefore  a  deceased  workman's 
administrator  can  sue  under  an  Act  only  when  authorized  by  stat- 
ute.21 

In  Iowa,  if  the  amount  of  damage  sustained  by  the  injured  em- 
ploye is  in  excess  of  the  compensation  paid,  the  injured  employe 
may  sue  the  third  party  for  such  amount,  even  though  he  has  al- 

the  schedules  of  the  Compensation  Act  remains  the  same  as  before  passage 
of  the  Act.  (Wk.  Comp.  Act,  Laws  1914,  c.  41,  §§  10,  11,  15)  Shinnick  v. 
Clover  Farms  Co.,  1C9  App.  Div.  236,  154  N.  Y.  Supp.  423.  The  particular 
intent  of  the  Legislature,  exempting  from  the  operation  of  section  1  of  the 
Act  employers  who  do  not  have  in  their  employment  more  than  five  em- 
ployes, controls  the  general  provisions  of  that  part  of  section  4  which  de- 
clares that  the  provisions  of  section  1  shall  be  applied  in  all  actions  for 
damages  against  employers  who  are  nonsubscribers  to  the  association.  In 
this  view,  section  4,  being  construed  with  section  2,  should  be  interpreted 
to  mean  that  the  employes  of  nonsubscribing  employers  may  recover  judg- 
ment against  their  employers  for  all  damages  sustained  by  reason  of  any 
personal  injuries  received  in  the  course  of  employment,  or  by  reason  of 
death  resulting  from  such  injury,  and  the  provisions  of  section  1  of  the  Act 
shall  be  applied  in  all  such  actions,  provided  that  such  employers  had  in 
their  employment  more  than  five  employes.  This  construction  harmonizes 
the  apparent  conflict  between  the  two  sections  and  permits  both  to  stand. 
(Acts  33d  Leg.  c.  179 ;  Vernon's  Sayles'  Ann.  Civ.  St.  1914,  §§  5246h-5246zzzz) 
Hodges  V.  Swastika  Oil  Co.  (Tex.  Civ.  App.)  185  S.  W.  SCO.  The  law  does 
not  in  any  way  attempt  to  abridge  the  remedies  which  an  employe  of  one 
person  may  have  at  law  against  a  third  person  for  a  tort  which  such  third 
person  commits  against  him,  unless  it  be  such  a  case  as  is  provided  for  by 
section  2394—6,  St.  1913  (chapter  599,  Laws  1913).  Smale  v.  Wrought  Washer 
Mfg.  Co.,  160  Wis.  331,  151  N.  W.  803.  An  employe,  injured  on  his  employ- 
er's premises  by  the  negligence  of  the  employer,  but  under  such  other  circum- 
stances as  to  prevent  recovery  under  the  Compensation  Act,  may  neverthe- 
less bring  an  action  under  the  common  law  against  his  employer  for  such 
injury.     Op.  Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  11,  p.  24. 

An  employe,  whose  ear  was  bitten  by  a  horse,  so  that  amputation  was 
necessary,  was  entitled  to  sue  for  damages,  since  such  injury  was  not  cov- 
ered by  the  provision  made  in  the  Compensation  Act  for  "other  cases  in 
this  class  of  disability."     Shinnick  v.  Clover  Farms  Co.,  supra. 

2  0  Massachusetts  Bonding  &  Ins.  Co,  v.  Pillsbury,  170  Cal.  767,  151  Pac. 
419. 

21  (Wk.  Comp.  Act  N.  J.)  De  Biasi  v.  Normandy  Water  Co.  (D.  C.)  228 
Fed.  235. 


§  203  workmen's  compensation  734 

ready  recovered  full  compensation  in  accordance  with  the  provi- 
sions of  the  Iowa  Workman's  Compensation  Act.^^ 

In  Massachusetts,  a  minor  employe  cannot  waive  his  parent's 
right  of  action  for  his  injuries.'^ 

The  Illinois  Workmen's  Compensation  Act  of  1913,  being  elec- 
tive, did  not  repeal  the  Mining  Act,  and  therefore  did  not  take  away 
the  right  of  action  under  the  Mining  Act.^* 

The  Factory  Act  of  Kansas  is  not  repealed  by  the  Compensation 
Act.  It  remains  in  full  force,  but  it  cannot  be  invoked  by  an  em- 
ploye to  whom  the  benefits  of  the  Compensation  Act  are  available, 
and  who  has  elected  to  accept  them.  Where,  however,  the  employer 
has  elected  not  to  accept  the  latter  Act,  the  employe  is  free,  not- 
withstanding his  own  acceptance,  to  bring  an  action  under  the  Fac- 
tory Act.2  5 

Where  a  workman  was  hired  in  New  Jersey  after  the  taking  effect 
of  the  New  Jersey  Workmen's  Compensation  Act  of  1911,  c.  95,  and 
nothing  was  done  by  either  the  employer  or  employe  to  avoid  the 
application  of  the  compensation  plan,  he  could  recover  only  under 
the  Workmen's  Compensation  Act,  not  under  the  New  Jersey  law 
permitting  a  larger  possible  recovery.^^ 

2  2  Op.  Sp.  Counsel  to  Iowa  Indus.  Com.  (1915)  p.  32.  The  injured  em- 
ploy6  may  proceed  against  both  the  employer  for  his  compensation  and 
against  the  third  person  who  caused  the  injury  to  recover  damages,  and 
the  amount  of  damages  which  he  may  recover  from  such  third  person  is  not 
limited  by  the  amount  of  compensation  to  which  he  is  entitled  under  the 
Workmen's  Compensation  Act.     (Code  Supp.  1913,  §  2477m6)  Id. 

2  3  (,St.  1911,  c.  751,  pt.  1,  §  5 ;  pt.  2,  §  5)  King  v.  Viscoloid  Co.,  219  Mass. 
420,  106  N.  E.  988. 

2  4  Eldorado  Coal  &  Min.  Co.  v.  Mariotti  (1914)  131  C.  C.  A.  359,  215  Fed. 
51,  7  N.  C.  C.  A.  966. 

25  (Gen.  St.  1909,  §§  4676^683,  and  Laws  1911,  c.  218,  amended  by  Laws 
1913,  c.  216)  Smith  v.  Western  States  Portland  Cement  Co.,  94  Kan.  501,  146 
Pac.  1026. 

26  Wasilewski  v.  Warner  Sugar  Refining  Co.,  87  Misc.  Rep.  156,  149  N.  Y. 
Supp.  1035. 


735  SETTLEMENT  OF  CONTROVERSIES  §  204 

§  204.     Willful  and  intentional  injuries 

As  used  in  a  provision  of  some  Acts  authorizing  recovery  by  the 
workman  from  the  employer,  in  addition  to  payment  from  the  ac- 
cident fund,  where  the  injury  results  from  deliberate  intention  of 
the  employer  to  cause  injury,  the  words  "deliberate  intention"  im- 
ply that  the  employer  must  have  determined  to  injure  an  employe 
and  used  some  means  appropriate  to  that  end;  there  must  have 
been  a  specific  intent,  and  not  merely  carelessness  or  negligence, 
however  gross. ^'^  The  words  "willful  act"  refer,  not  only  to  an  act 
done  intentionally  with  a  purpose  to  inflict  injury,  but  include  acts 
which  show  utter  disregard  of  consequences.^^  The  failure  to  guard 
a  circular  saw  in  compliance  with  a  statutory  safety  regulation,  to 
prevent  it  from  throwing  off  slivers,  is  an  "intentional  injury"  with- 
in the  provision  that  in  such  case  the  Illinois  Act  shall  not  affect  the 
employer's  civil  liability.^''  In  Ohio,  where  the  employer  has  paid 
the  premiums  and  posted  the  necessary  notice,  there  can  be  no  re- 
covery for  negligence  or  want  of  ordinary  care;    but  if  the  injury 

2  7  (Laws  1913,  p.  204,  §  22)  Jenkins  v.  Carman  Mfg.  Co.  (Or.)  155  Pac.  703. 

A  deliberate  act  is  one  the  consequences  of  which  are  weighed  in  the 
mind  beforehand.  It  is  prolonged  premeditation,  and  the  word,  when  used 
in  connection  with  an  injury  to  another,  denotes  design  and  malignity  of 
heart.  It  has  been  defined  so  many  times  that  it  is  difficult  to  select  any 
one  definition  which  covers  every  phase  in  which  the  word  is  used,  but  some 
of  the  most  apt  are:  "The  word  'deliberate'  is  derived  from  two  Latin  words, 
which  mean,  literally,  'concerning'  and  'to  weigh.'  *  *  *  As  an  adjective 
*  *  *  it  means  that  the  manner  of  the  performance  was  determined  upon 
after  examination  and  reflection — that  the  consequences,  chances,  and 
means  were  weighed,  carefully  considered,  and  estimated."  Craft  v.  State, 
3  Kan.  451 ;  Jenkins  v.  Carman  Mfg.  Co.,  supra.  "Deliberation  is  prolonged 
premeditation."  State  v.  Speyer,  207  Mo.  540,  106  S.  W.  505,  14  L.  R.  A. 
(N,  S.)  836.  "Deliberation  is  that  act  of  the  mind  which  examines  and  con- 
siders whether  a  contemplated  act  should  or  should  not  be  done."  United 
States  V.  Kie,  Fed.  Cas.  No.  15,528b. 

As  to  the  right  to  double  compensation,  see  §  184,  ante. 

28  McWeeny  v.  Standard  Boiler  &  Plate  Co.  (D.  C.)  210  Fed.  507. 

2  9  (Wk.  Comp.  Act  1911,  §  3)  Forrest  v.  Roper  Furniture  Co.,  267  111.  331, 
108  N.  E.  328. 


§  205  workmen's  compensation  736 

results  from  a  willful  act,  or  from  violation  of  statute  or  ordinance, 
or  order  of  any  duly  authorized  officer,  which  statute  or  ordinance, 
or  order,  was  enacted  to  protect  the  life  and  safety  of  the  em- 
ploye, the  employe  can  either  take  the  benefits  provided  under  the 
Act  or  sue  in  court  to  recover.^** 

§  205.     Washington 

Under  the  Washington  Act,  employes  as  members  of  the  public 
have  their  rights  against  third  persons  the  same  as  before  its  en- 
actment.^^ The  right  to  recover  upon  an  accident  policy  is  not 
affected.  That  right  rests  upon  a  contract  which  is  independent  of 
the  subject  treated  by  the  statute,  and  with  parties  with  whom  it 
has  no  concern. ^^  Where  an  employer  was  notified  of  a  shortage 
due,  on  its  adjustment,  with  demand  for  payment  within  30  days, 
and  a  workman  was  injured  during  that  time  before  payment  was 
made,  the  employer,  on  making  payment  within  the  time,  was 
entitled  to  the  benefit  of  the  Act,  and  the  injured  workman  could 
not  maintain  an  action  in  the  courts.^^  A¥here  the  driver  of  a  truck 
was  injured  in  the  installation  of  a  dynamo  in  obedience  to  in- 
structions, and  the  employer  had  not  defaulted  in  payments  to  the 
accident  fund,  the  injured  employe's  claim  for  damages  was  gov- 
erned by  the  Workmen's  Compensation  Act ;  an  action  for  damages 

30  (Wk.  Comp.  Act,  102  Ohio  Laws,  p.  528,  §§  20—1,  20—2)  McWeeny  v. 
Standard  Boiler  &  Plate  Co.  (D,  C.)  210  Fed.  507.  The  Ohio  statute  contains 
no  definition  of  "willful  act,"  but  New  Jersey  in  its  Workmen's  Compensa- 
tion Act  (P.  L.  1911,  p.  134,  §  3,  par.  23)  has  defined  the  term  "willful  negli- 
gence."    Id. 

Where  the  employer,  in  erecting  an  iron  tank,  ordered  the  use  of  a  der- 
rick, knowing  of  defects  in  consequence  of  which  the  derrick  collapsed,  the 
employer  was  guilty  of  a  "willful  act,"  and  liable,  though  it  had  complied 
with  the  Workmen's  Compensation  Act.    Id. 

31  (Wk.  Comp.  Act  Wash.  §  1)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  3. 

3  2  Ross  V.  Erickson  Constr.  Co.,  89  Wash.  634,  155  Pac.  153. 

33  (Sess.  Laws  Wash.  1911,  c.  74,  §  4)  Barrett  v.  Grays  Harbor  Commercial 
Co.  (D.  C.)  209  Fed.  95. 


737  SETTLEMENT  OP  CONTROVERSIES  §  206 

being  authorized  only  where  the  employer  is  in  default  in  such  pay- 
ments.^* An  employe,  relying  on  the  Act  as  withdrawing  an  action 
from  the  courts,  must  plead  and  prove  compliance  with  the  Act.^^ 

§  206.     New  York 

The  Legislature,  in  enacting  the  New  York  Act,  did  not  intend 
to  deprive  an  employe  of  the  right  to  recover  damages  for  injuries 
not  constituting  disabilities  within  the  meaning  of  the  statute.^®' 
Before  the  amendment  of  1916,  no  provision  was  made  in  the  stat- 
ute for  any  rate  of  compensation  for  injuries  which  did  not  disable 
the  employe,  but  which  constituted  injury  to  him  through  disfigure- 
ment or  otherwise,  as  by  loss  of  an  ear  or  part  thereof.^''^ 

This  Act  does  not  deprive  the  injured  employe  of  his  common- 
law  remedy  against  a  third  person  by  whose  negligence  he  may  be 
injured,  although  at  the  time  of  injury  he  was  pursuing  his  duties 
under  the  terms  of  his  employment.^®  It  follows  as  an  inevitable 
corollary  of  this  proposition  that  if  the  employe  be  injured  in  the 
course  of  his  master's  employment,  through  negligence  of  the 
master,  while  the  latter  is  engaged  in  an  enterprise  altogether  inde- 
pendent of  and  unrelated  to  the  business,  in  which  the  employe  was 
employed,  the  master,  as  to  that  enterprise,  must  be  regarded  as  a 
third  person. ^^  Thus  where  a  driver  in  the  employ  of  a  brewery 
was  injured  while  making  a  delivery  of  beer  to  a  saloon  keeper  at 

34  Eeplogle  V.  Seattle  School  Dist.  No.  1,  84  Wash.  581,  147  Pac.  196. 

3  5  Acres  v.  Frederick  &  Nelson,  Inc.,  79  Wash.  402,  140  Pac.  370. 

3  6  While  the  New  York  Compensation  Act  is  the  exclusive  remedy  for  in- 
juries covered  by  it,  an  employe  may  recover  damages  for  an  injury  not  cov- 
ered by  the  Act,  but  by  the  common  law.  Shinnick  v.  Clover  Farms  Co.,  169 
App.  Div.  236,  154  N.  Y.  Supp.  423. 

3  7  (Laws  1914,  c.  41,  §§  10,  11,  15)  Shinnick  v.  Clover  Farms  Co.,  90  Misc. 
Rep.  1,  152  N.  Y.  Supp.  649.  (See,  in  this  connection,  the  1916  amendment. 
Laws  1916,  c.  622.) 

8  8  Lester  v.  Otis  Elevator  Co.,  169  App.  Div.  613,  155  N.  Y.  Supp.  524. 

39  Winter  v.  Peter  Doelger  Brewing  Co.,  95  Misc.  Rep.  150,  159  N.  Y.  Supp. 
113. 

HON.COMP. — i7 


§  206  workmen's  compensation  738 

premises  entirely  disconnected  with  the  brewery,  the  remedy  given 
by  the  Workmen's  Compensation  Act  could  not  be  regarded  as  ex- 
clusive, though  the  brewery  company  happened  to  be  the  owner 
of  the  premises  where  the  accident  occurred.*" 

The  provision  that  "the  liability  prescribed  *  *  *  shall  be 
exclusive"  does  not  release  the  employer  from  liability  for  damages 
in  an  action  for  negligence  brought  on  behalf  of  dependent  broth- 
ers and  sisters,  since  these  relatives  of  the  workman  are  not  in- 
cluded as  dependents  under  the  Compensation  Act,  and  since  the 
Constitution  forbids  the  abrogation  of  any  right  of  action  to  re- 
cover damages  for  injuries  resulting  in  death. *^ 

As  used  in  a  provision  that  "failure  to  secure  the  payment  of  com- 
pensation shall  have  the  effect  of  enabling  the  injured  employe  or 
his  dependents  to  maintain  an  action  for  damages  in  the  courts  as 
prescribed  by  section  11,"  which  provides,  in  case  of  death  of  the 
employe,  his  legal  representative  may  at  his  option  elect  to  claim 
compensation  under  the  Act  or  to  sue  for  damages,  the  phrase  "le- 
gal representative"  means  dependent,  and  not  executor  or  admin- 
istrator.*^ 

§  207.     Arizona 

Under  the  laws  of  Arizona,  an  employe  who  is  injured  in  the 
course  of  his  employment  has  open  to  him  three  avenues  of  redress, 
any  one  of  which  he  may  pursue  according  to  the  facts  of  his  case. 
They  are:  (1)  The  common-law  liability  relieved  of  the  fellow 
servant  defense,  and  in  which  the  defenses  of  contributory  negli- 
gence and  assumption  of  risk  are  questions  to  be  left  to  the  jury. 
(2)   Employers'  Liability  Act,  which  applies  to  hazardous  occupa- 

4  0  Id. 

41  (Const.  N.  Y.  art.  1,  §  IS;  Wk.  Comp.  Act,  §  11)  Shanahan  v.  Monarch 
Engineering  Co.,  92  Misc.  Rep.  466,  156  N.  Y.  Supp.  143. 

42  Dearborn  v.  Peugeot  Auto  Import  Co.,  170  App.  Div.  93,  155  N.  Y.  Supp. 
769. 


739  SETTLEMENT  OF  CONTROVERSIES  §  208 

tions  where  the  injury  or  death  is  not  caused  by  his  own  negligence. 
(3)  The  Compulsory  Compensation  Act,  applicable  to  especially 
dangerous  occupations,  by  which  he  may  recover  compensation 
without  fault  upon  the  part  of  the  employer.** 

§  208.     Election  of  remedies  after  event 

Where  an  employe  suffers  an  injury  while  in  the  course  of  his  em- 
ployment, which  injury  is  caused  by  some  person  or  agency  not 
connected  with  the  employment,  he  may  elect  whether  to  sue  the 
party  directly  responsible  for  his  injury  or  make  application  to  his 
employer  for  compensation.**  As  a  rule  an  election  to  take  or  sue 
for  compensation  is  binding,*^  and  takes  away  the  right  to  pursue 
any  other  remedy,  which  would  otherwise  be  available.*®     Under 

43  Consolidated  Arizona  Smelting  Co.  v.  Ujack,  15  Ariz.  3S2,  139  Pac.  4G5. 
(Const,  art.  IS,  §§  4,  5,  7,  8 ;   Laws  1912,  c.  89 ;   I^avs  1912,  1st  Sp.  Sess.  e.  14.) 

44  McKay  v.  City  Electric  Ry.  Co.,  Mich.  Wk.  Comp.  Cases  (1916)    63. 

An  injured  workman  has  the  right  of  election  where  a  third  party  is  liable 
as  well  as  his  employer.  Manis  v.  City  of  Milwaukee,  Bui.  Wis.  Indus.  Com. 
1912-13,  p.  29. 

*5  Where  the  employe's  administratrix  has  the  right  to  sue  at  law  or  to 
sue  for  compensation,  her  election  is  binding.  (Wk.  Comp.  Act,  pt.  5,  §  2 ; 
part  3,  §  15)  Turnquist  v.  Hannon,  219  Mass.  560,  107  N.  E.  443. 

46  Zilch  V.  Bomgardner,  91  Ohio  205,  110  N.  E.  459 ;  Consolidated  Arizona 
Smelting  Co.  v.  Ujack,  15  Ariz.  382,  1.39  Pac.  465. 

Where  one  has  obtained  relief  under  the  Washington  Compensation  Act 
(Soss.  Laws  Wash.  1911,  c.  74),  he  cannot  by  proceedings  in  admiralty  obtain 
compensation  for  his  injuries.  The  Fred  E.  Sanders,  212  Fed.  545.  The 
employe,  by  his  election  to  take  damages,  even  if  received  without  suit,  and 
under  the  condition  that  the  cause  of  action  must  be  released,  exercises  the 
option  given  by  the  statute.  In  re  Cripp,  216  Mass.  586,  104  X.  E.  565,  Ann. 
Cas.  1915B,  S2S.  This  case  is  supported  by  Page  v.  Burtwell,  [1908]  2  K.  B. 
758;  Powell  v.  IMain  Colliery  Co.,  [1900]  A.  C.  366.  An  employ^,  without 
consulting  his  attorneys,  may  agree  to  take  under  the  Kansas  Act  and  there- 
by waive  his  right  of  action  under  the  general  law.  (Wk.  Comp.  Act  Kan.  § 
44)  Piatt  V.  Swift  &  Co.,  188  Mo.  App.  584,  176  S.  W.  434.  Where  a  work- 
man has  obtained  compensation  from  his  employer  as  provided  by  the  Com- 
pensation Act,  he  cannot  then  sue  in  the  courts  for  further  compensation  be- 
cause of  disfigurement  or  pain  and  suffering.     Connors  v.  Semet-Solvay  Co., 


§  208  workmen's  compensation  740 

some  Acts  an  employe  who  makes  application  for  compensation 
thereby  waives  his  right  to  sue  in  any  court.^^ 

Under  the  California  Act,  commencement  of  an  action  is  not  nec- 
essarily a  binding  election,  depriving  the  employe  of  his  right  to 
compensation,  particularly  where  the  action  is  voluntarily  dismiss- 
ed,*^ or  the  court  determines  that  the  proper  remedy  is  under  the 
Act,  and  that  the  institution  of  the  action  is  a  vain  proceeding."*^ 

159  N.  Y.  Supp.  431.  (In  this  connection  see  1916  amendment,  Laws  191G,  c. 
622.)  If  tlie  insurance  company  makes  the  payments  required  of  the  em- 
ployer at  the  time  or  times  required  in  the  Act,  then  there  is  no  further 
liability  on  the  part  of  either  the  employer  or  the  insurance  company.  The 
injured  employ§  cannot  recover  from  both  the  insurance  company  and  the 
employer.    Op.  Sp.  Counsel  to  the  Iowa  Indus.  Com.  (1915)  p.  24. 

Where  a  workman  was  injured  while  driving  a  truck  which  came  into  col- 
lision with  a  street  car,  and  settled  with  the  street  car  company  without 
suit,  after  which  he  died  as  a  result  of  his  injuries,  his  widow  could  not  re- 
cover compensation.     (St.  1911,  c.  751,  pt.  3,  §  15)  In  re  Cripp,  supra. 

An  employe  cannot  accept  payment  in  lieu  of  damages  from  the  person 
causing  his  injury  and  draw  compensation  from  his  employer  at  the  same 
time.  Any  money  so  paid  should  be  deducted  from  the  amount  of  compensa- 
tion awarded  him.  McKay  v.  City  Electric  Ry.  Co.,  Mich.  Wk.  Comp.  Cases 
(1916)  63. 

Whether  release  of  employer  releases  third  person  tort-feasor,  see  §  1S9, 
ante. 

4  7  Where  a  blank  signed  by  the  injured  employe  and  sent  to  the  Liability 
Board  of  Awards  read,  "I  hereby  make  application  *  *  *  for  the  pay- 
ment of  moneys  out  of  the  state  insurance  fund  on  account  of  the  injury," 
and  requested  that  all  necessary  blanks  be  furnished,  it  was  not  merely  a 
notice  provided  for  by  a  rule  of  the  Board,  but  an  "application"  within  Page 
&  A.  Gen.  Code,  §§  1465 — 61,  providing  that  an  applicant  for  compensation 
waives  his  right  to  sue  in  any  court.  Zilch  v.  Bomgardner,  91  Ohio,  205,  110 
N.  E.  459. 

.  4  8  Where  the  employg  has  elected  to  take  compensation  from  his  employer, 
and  while  he  is  receiving  same,  and  before  he  files  his  application  with  the 
Commission,  sues  the  third  party,  whose  negligence  caused  the  injury,  and 
thereafter  dismisses  such  suit  before  the  filing  of  his  application,  the  filing 
of  the  suit  does  not  take  away  the  right  to  compensation.  Dyke  v.  Conlon, 
2  Cal.  I.  A.  C.  Dec.  814. 

4  9  Where  an  employ§  sues  his  employer  in  the  superior  court  for  damages 
for  injuries  received  in  the  course  of  the  employment,  and  the  court  sustains 


741  SETTLEMENT  OP  CONTROVERSIES  §  208 

But  where  an  employe  accepted  four  weeks'  medical  and  hospital 
treatment  from  his  employer,  and  the  services  of  a  doctor  employed 
especially  to  treat  him,  this  constituted  such  prior  election  of  rem- 
edies as  to  bar  his  right  to  begin  an  action  in  the  superior  court. ^"^ 
Likewise,  where  the  applicant  before  the  filing  of  his  claim  had 
received  the  sum  of  $200  from  the  owner  of  an  automobile  which 
had  run  him  down,  as  a  full  settlement  and  release,  and  had  not 
received  any  compensation  or  medical  treatment  from  his  employer 
before  making  such  settlement,  he  had  exercised  his  election  to  seek 
redress  from  the  person  causing  the  injury  and  not  from  his  em- 
ployer, and  thereby  lost  his  right  to  claim  compensation  against  his 
employer.^^  And  where  the  employe  had  notified  the  employer  of 
his  injury,  and  had  been  visited  by  the  employer  and  received  an 
accident  report  to  fill  out,  but  had  not  received  medical  treatment 
or  compensation  from  the  employer,  a  settlement  with  a  third  per- 
son made  at  this  time  was  made  before  "making  a  lawful  claim 
against  his  employer,"  °^ 

The  Arizona  Act  controls  the  rights  and  obligations  of  employer 
and  employe,  where  injury  results  and  the  employe  exercises  his 
option  to  accept  compensation  and  the  employer  refuses  to  pay,  but 
does  not  require  the  employe  to  elect  prior  to  injury  which  remedy 
he  will  adopt.^^ 

a  demurrer  to  the  complaint,  because  it  fails  to  allege  that  the  employe  was 
injured  through  the  gross  negligence  or  willful  misconduct  of  an  elective 
officer  of  the  corporation  employing  him,  and  the  employe  thereupon  makes 
his  application  to  the  Commission  for  compensation,  his  act  of  filing  the 
complaint  was  a  vain  proceeding,  and  not  sufficient  to  constitute  a  binding 
election,  so  far  as  would  bar  the  employe  from  his  right  to  compensation. 
Broderick  v.  San  Francisco  Stevedoring  Co.,  2  Cal.  I.  A.  C.  Dec.  293;  San 
Francisco  Stevedoring  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  29S,  170  Cal.  321, 
149  Pac.  586. 

5  0  Broderick  v.  San  Francisco  Stevedoring  Co.,  supra. 

51  Lantis  v.  City  of  Sacramento,  2  Cal.  I.  A.  C.  Dec.  680. 

52  Id. 

63  Consolidated  Arizona  Smelting  Co.  v.  Ujack,  15  Ariz.  382,  139  Pac.  465. 


§  208  workmen's  compensation  742 

The  mere  fact  that  defendant  has  paid  plaintiff's  hospital  and 
doctor's  bills  during  the  first  three  weeks  after  the  injury,  as  re- 
quired by  the  Michigan  Act,  cannot  in  any  event  constitute  an  elec- 
tion by  plaintiff  after  the  injury  to  accept  the  Act,  especially  where 
there  has  been  no  assent  on  the  part  of  the  plaintiff  that  such  pay- 
ment is  in  compliance  with  the  act.^* 

Where  an  employer  has  not  rejected  the  Connecticut  Act,  but  has 
neglected  to  insure  his  liability  as  provided  by  section  30,  pt.  B,  the 
employe  may  elect  whether  he  will  seek  compensation  under  the 
Act  or  sue  in  the  courts  for  damages,  and  if  he  elects  to  seek  com- 
pensation the  employer  must  pay."'^^ 

In  Wisconsin,  where  an  injured  workman  recovered  compensa- 
tion and  medical  expenses  from  his  employer,  but,  on  later  finding 
out  that  he  had  an  action  against  his  physician  for  malpractice, 
offered  to  return  the  amount  received,  and  elected  to  hold  the  phy- 
sician, his  former  claim  had  not  acted  as  an  assignment  of  his  claim 
against  the  physician  to  the  employer,  since  he  was  required  to 
elect  which  he  would  sue  only  after  he  learned  of  the  other  right 
of  action.^® 

Where  an  employe  elects,  as  permitted  by  the  New  York  Act, 
to  bring  a  common-law  action  for  damages,  his  recovery  is  not  lim- 
ited to  the  rate  of  compensation  fixed  by  the  Act.^^     He  cannot 

54  Grand  Trunk  Ry.  Co.  of  Canada  v.  Knapp  (C.  C.  A.)  233  Fed.  950. 

5  5  Neumann  v.  Turner,  1  Conn.  Comp.  Dec.  130;  Loveland  v.  Parish  of  St. 
Thomas  Church,  1  Conn.  Comp.  Dec.  14 ;  Brewer  v.  Belcher,  1  Conn.  Comp. 
Dec.  111. 

In  Loveland  v.  Parish  of  St.  Thomas  Church,  supra,  it  was  held  that  where 
the  employer  accepts  the  Act,  but  fails  to  comply  with  part  B,  §  30,  by  in- 
suring his  liability,  section  42,  part  B,  providing  that  he  forfeits  "all  benefits 
thereunder  and  shall  be  liable  as  if  he  had  not  accepted  same,"  being  a  penalty 
provision,  does  not  deprive  an  employe  of  the  right  to  bring  compensation 
proceedings  against  such  employer,  but  allows  him  to  choose  compensation 
or  damages. 

5  6  (Wis.  St.  1915,  §  2394—25,  subds.  1,  2)  Pawlak  v.  Hayes,  162  Wis.  503, 
156  N.  W.  464. 

5  7  (Wk.  Comp.  Act,  §  11)  Dick  v.  Knoperbaum,  157  N.  Y.  Supp.  754. 


743  SETTLEMENT  OF  CONTROVERSIES  §  208 

recover,  however,  in  the  absence  of  negligence  on  the  part  of  the 
employer.^^  The  election  of  the  decedent's  widow  to  bring  a  com- 
mon-law action  for  damages  against  a  third  party  does  not  bar  or 
aiTect  in  any  way  the  right  of  his  dependent  mother  to  compen- 
sation, her  right  being  separate  and  independent.^^  Under  the 
Washington  Act,  an  employe  injured  off  his  employer's  premises 
by  the  act  of  a  third  person  must  elect  whom  he  shall  sue,  but  no 
duty  of  electing  is  imposed  on  him  where  he  is  injured  by  the  third 
person  on  the  premises.*** 

5  8  (Consol.  Laws,  c.  67,  §  11)  Lindebauer  v.  Weiner    (1916)  91  Misc.  Rep. 
612,  159  N.  Y.  Supp.  987. 

5  9  In  re  Cahill,  159  N.  T.  Supp.  1060. 

60  Stertz  V.  Indus.  Insur.  Com.  of  Wash.    158  Pac.  256. 


§  209  workmen's  compensation  744 

ARTICLE  III 

LEGxiL  PROCEEDINGS  IN  GENERAIi 

Section 
209.     Practice. 

§  209.     Practice 

A  proceeding  under  a  Compensation  Act  is  not  a  proceeding  at 
law,  and  is  not  altogether  governed  by  the  rules  of  legal  proceed- 
ings.°^  The  procedure  under  the  various  Acts  is  very  similar,  and 
many  statements  relative  to  the  practice  under  one  are  pertinent  to 
the  practice  under  the  others.  The  Massachusetts  Act,  as  have 
most  of  the  Acts,  has  a  procedure  all  of  its  own,  distinct  from  the 
practice  in  ordinary  actions.  Where  the  Act  is  adopted  by  the 
parties,  a  relation  arises  between  the  employe  and  the  employer, 
under  which,  in  event  of  a  personal  injury  to  the  employe,  there  is 
to  be  speedy  ascertainment  of  the  new  kind  of  compensation  created 
by  the  Act,  coupled  with  a  voluntary  relinquishment  by  both  par- 
ties of  the  right  to  trial  by  jury  as  to  matters  covered  by  the  Act. 
As  said  in  a  leading  case,  one  main  purpose  of  the  Act  is  to  es- 
tablish between  the  employe  and  employer,  in  place  of  the  com- 
mon-law or  statutory  remedy  for  personal  injury,  based  upon  tort, 
a  system  whereby  compensation  for  all  injuries  or  death  of  the  em- 
ploye received  in  the  course  of  and  arising  out  of  the  course  of  the 
employment,  whether  through  unavoidable  accident  or  negligence, 
or  otherwise  (except  through  his  serious  and  willful  misconduct), 
shall  be  determined  forthwith  by  a  public  board,  and  paid  by  the 
insurer.  For  the  accomplishment  of  these  ends  a  simple  method 
is  furnished,  operating  without  delay  or  unnecessary  formality. 
The  practice  should  be  direct  and  flexible,  in  order  to  adapt  the 
remedy  to  the  needs  of  the  particular  case.     In  one  aspect  a  case 

61  Victor  Chemical  Works  v.  Indus.  Board  of  111.  (1916)  274  111.  11,  113  N. 
E.  173.  Proceedings  under  the  Workmen's  Compensation  Act  to  recover  com- 
pensation take  the  place  of  the  ordinary  action  on  the  case  against  an  em- 
ployer for  damages  for  causing  the  death  or  of  injury  to  an  employ^.    Id. 


745  SETTLEMENT  OF  CONTROVERSIES  §  209 

under  the  Act  resembles  an  action  at  law,  for  it  seeks  ultimately  the 
payment  of  money.  Payments,  however,  in  most  instances  are 
made  by  installments.  In  another  aspect  it  is  akin  to  the  specific 
performance  of  a  contract,  designed  to  cover  the  whole  range  of 
misfortunes  likely  to  arise  in  the  course  of  employment  in  a  state 
with  many  and  diversified  industries.  Moreover,  the  compensation 
is  to  be  paid,  not  directly  by  the  employer,  but  by  the  insurer,  who 
is  either  the  "Massachusetts  Employes'  Insurance  Association"  cre- 
ated by  part  4  of  the  Act,  or  any  liability  insurance  company  au- 
thorized to  do  business  within  the  commonwealth.  The  employe 
has  no  immediate  relation  with  the  insurer.  He  is  the  beneficiary 
under  a  contract  between  the  employer  and  the  insurer.  A  bene- 
ficiary under  any  instrument  to  which  he  is  not  a  direct  party  more 
naturally  looks  to  equity  than  to  the  law  for  relief.^^  Giving  due 
weight  to  the  beneficial  purposes  of  the  Act,  which  can  be  enforced 
better  through  the  rehef  afforded  by  equity,  and  to  the  character 
of  the  proceeding  itself  and  the  parties  thereto,  it  follows  that  in 
the  main  causes  under  the  Act  in  court  should  be  treated  as  equita- 
ble rather  than  legal  in  nature,  procedure,  and  final  disposition.^^ 

A  proceeding  under  a  Compensation  Act  is  neither  an  action  upon 
contract  nor  one  of  tort,  but  rather  what  the  statute  creating  it 
makes  it;  that  is,  a  proceeding  to  enforce  a  statutory  duty  or  ob- 
ligation arising  out  of  the  relations  of  the  parties,  the  basis  of  which 
is  a  contract,  express  or  implied. °* 

Under  the  English  Act,  the  courts  regard  the  employer,  whose 
place,  under  the  West  Virginia  Act,  the  Commission  takes,  as  a 
demurrant  to  the  evidence,  when  the  issue  is  dne  of  mere  suffi- 
ciency thereof.  If  the  evidence  adduced,  or  the  facts  found  or  dis- 
closed, are  uncontradicted  and  would  sustain  a  verdict  of  a  jury 
in  favor  of  the  claimant,  there  is  liability,  as  a  matter  of  law,  and 

62  In  re  American  Mut.  Liab.  Ins.  Co.  (Mass.)  102  N.  B.  693. 

63  Id. 

64  Baur  V.  Court  of  Common  Pleas,  88  N.  J.  Law,  128,  95  Atl.  627. 


§  209  workmen's  compensation  746 

legal  duty  to  pay  the  claim  arises.*'^  Likewise,  in  West  Virginia,  in 
the  absence  of  conflict  in  the  evidence  adduced  to  show  a  claim- 
ant's right  to  participation  in  the  Workman's  Compensation  Fund, 
the  Commission  is  regarded,  in  the  Supreme  Court,  as  a  demur- 
rant to  the  evidence,  and,  if  the  evidence  would  sustain  a  verdict  of 
a  jury  in  favor  of  the  claimant,  the  claim  is  regarded  as  sufficiently 
proved.  It  is  the  duty  of  the  Commission,  under  such  circum- 
stances, to  give  the  claimant  the  benefit  of  inferences  arising  in 
his  favor  from  the  facts  proved,  in  the  absence  of  direct  evidence.®^ 

esPoccardi  v.  Public  Service  Commission,  75  W.  Va.  542,  84  S.  E.  242,  L. 
R.  A.  1916A,  299;  Mitchell  v.  Glamorgan  Coal  Co.,  9  W.  C.  C.  16;  Wright  v. 
Kerrigan,  4  B.  W.  C.  C.  432 ;   Owners  of  Steamship  v.  Rice,  4  B.  W.  C.  C.  298. 

66  Poccardi  v.  Public  Service  Commission,  75  W.  Va.  542,  84  S.  E.  242,  L.  R. 
A.  1916A,  299. 


747  SETTLEMENT  OF  CONTROVERSIES  §  210 

ARTICLE  IV 

NOTICE  AND  CLAIM 

Section 

210.  Notice. 

211.  Notice  to  principal. 

212.  Compensation   claims — SufBciency — Abatement. 

213.  Necessity  of  claim — Waiver. 

214.  Time  for  presentation — Limitations. 

215.  Federal  Act. 

§  210.     Notice 

A  notice  which  gives  the  employer  opportunity  to  investigate 
the  accident  and  knowledge  of  all  material  things  relating  thereto  is 
sufficient  to  comply  with  the  requirement,  common  to  practically 
all  of  the  Acts,  that  notice  of  injury  be  given."    The  filing  of  claim 

6  7  (Pub.  Acts  1912,  No.  10,  pt.  2,  §  15)  In  Matwiczuk  v.  American  Car  & 
Foundry  Co.  (Mich.)  155  N.  W.  412,  the  court  said:  "What  was  done  gave 
the  employer  every  opportunity  to  investigate  the  accident,  and  knowledge  of 
all  material  things  relating  thereto,  as  fully  as  though  an  application  had 
been  made  in  a  formal  way  by  the  widow  upon  the  day  when  the  letter  was 
written.  The  next  day  after  the  injury  the  employer  was  notified  of  it,  the 
result  of  it,  the  time  and  place  and  cause  of  its  happening,  and  of  the  persons 
who  were  dependent.  This  notice  was  given,  not  by  an  outsider,  but  through 
the  agency  of  the  brother-in-law  of  the  deceased,  the  brother  of  the  widow. 
What  was  done  was  notice  of  a  claim  by  the  deceased's  dependents,  made  by 
a  person  in  their  behalf.  We  think  it  too  technical  to  say  that  a  notice  and 
claim,  made  within  twenty-four  hours  after  the  accident,  caused  to  be  given, 
as  in  this  case,  in  behalf  of  the  widow,  who  could  not  make  the  claim  herself, 
because  of  the  distance  from  where  she  lived,  which  action  was  ratified  by 
her  on  being  advised  of  the  situation,  must  fail  because  the  ratification  did 
not  reach  this  country  within  six  months  from  the  time  of  the  accident.  To 
so  hold  would  not  be  according  to  the  letter  or  the  spirit  of  the  Employers' 
Liability  Act.  It  is  clear  that  what  was  done  gave  the  employer  notice  of 
the  injury,  thus  affording  an  opportunity  for  a  full  investigation.  It  also 
gave  notice  of  who  were  dependents.  We  think  it  is  also  clear  that  the 
company  was  informed  that  the  brother-in-law,  by  employing  the  attorney 
who  wrote  the  letter  giving  this  information,  was  seeking  to  protect  the  in- 
terests of  the  widow  and  minor  children,  who  were  in  Poland,  and  the  infer- 
ence follows  almost  as  of  course  that  a  claim  was  urged  in  their  behalf,  grow- 
ing out  of  the  death  of  the  husband  and  father.    The  language  of  the  statute 


§  210  workmen's  compensation  748 

for  injury  with  the  Industrial  Accident  Board  of  Michigan,  and  the 
action  of  the  Board  in  communicating  the  fact  of  the  making  of 
such  claim,  constitutes  sufficient  compliance  with  the  statute  in  re- 
gard to  notice.^^ 

As  used  in  a  provision  that  notice  of  injury  may  be  given  to 
"any  officer  or  agent"  of  a  corporation  employing  the  injured  work- 
man, and  that  knowledge  of  the  employer's  agent  will  preclude 
want  of  notice  from  barring  recovery,  "agent"  does  not  include  ev- 
ery person  authorized  to  act  for  the  corporation  in  its  business  re- 
lations with  third  persons.^^    The  word  is  broad  enough,  however, 

indicates  that  the  notice  and  claim  might  be  in  ordinary  language,  and  might 
be  signed  by  dependents  'or  by  a  person  in  their  behalf,'  and  what  would  be 
more  natural  than  to  assume  that  a  brother  of  the  widow  in  her  absence  would 
act. for  her?" 

Where  the  fact  that  the  applicant  was  suffering  from  a  sore  thumb  was 
reported  to  the  foreman  of  the  department  in  which  she  was  employed,  such 
notice  is  sufficient  to  make  the  employer  liable  for  the  reasonable  cost  of 
medical  treatment.  It  matters  nothing  that  the  parties  thought  the  injury 
trivial,  as  there  was  abundant  experience  in  the  cannery  with  effects  following 
such  injuries  to  warrant  the  furnishing  of  proper  treatment.  Pettit  v.  Menden- 
hall,  2  Cal.  I.  A.  C.  Dec.  212. 

The  mere  fact  of  notice  over  the  telephone  is  sufficient  to  charge  the  em- 
ployer with  knowledge  of  injury  to  his  employe.  Cutaria  v.  Swieberg,  Bulle- 
tin No.  1,  111.,  153. 

The  fact  that  the  injury  was  reported  to  the  farm  superintendent  within  a 
few  days,  and  claim  was  made  for  compensation  in  a  letter  to  the  employer 
within  the  time  required  by  law,  was  sufficient  notice  of  applicant's  claim. 
Shafer  v.  Park,  Davis  &  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  7. 

6  8  Damps  V.  Michigan  Central  Railroad  Co.,  Mich.  Wk.  Comp.  Cases 
(1016)    25. 

6  9  In  re  Bloom,  222  Mass.  434,  111  N.  E.  45. 

In  Malkowsky  v.  Silberovicz,  1  Conn.  Comp.  Dec.  136,  where  the  employ 6 
gave  his  employer  no  notice  of  the  injury,  merely  telling  another  workman, 
not  representing  the  employer,  that  he  "felt  bad,"  and  the  employer  had  no 
knowledge  of  the  injury,  such  employe  was  denied  an  award  for  medical  ex- 
pense incurred  by  him. 

Where  an  injured  workman  informed  an  overseer,  who  measured  and 
checked  up  the  time,  of  his  injury,  but  the  employer  did  not  know  of  the 
injury  until  his  recovery  four  months  later,  the  notice  to  the  overseer  cannot 
affect  the  employer  in  any  way,  and  he  had  no  notice.     Jackson  v.  Vickers, 


749  SETTLEMENT  OP  CONTROVERSIES  §  210 

to  include  a  foreman  having  superintendence  over  workmen  and 
their  work  and  acting  as  the  employer's  representative,  and  the 
one  most  likely  to  know  of,  and  whose  duty  it  is  to  report  to  the 
employer,  any  injuries  to  workmen.^** 

Notice  of  the  injured  employe's  application  must  be  given  to  the 
person  sought  to  be  held  liable  before  any  testimony  is  taken  by 
the  California  Commission,  though  the  Act  is  silent  on  this  point. 
The  provision  declaring  the  right  "to  be  present  at  any  hearing" 
and  to  "present  such  testimony  as  shall  be  pertinent  under  the 
pleadings"  implies  that  such  notice  shall  be  given. '^^ 

Actual  knowledge  may  dispense  with  the  necessity  of  notice. '- 

Ltd.  (1912)  5  B.  W.  C.  C.  430,  C.  A.  Notice  that  a  workman  had  sprained  his 
ankle,  sent  by  him  the  following  day  to  the  foreman  he  worked  under,  is  ilot 
notice  to  the  employers.     Burrell  v.  Holloway  Bros.  (London),  Ltd.   (1911)  4 

B.  W.  C.  C.  241,  C.  A.  Mentioning  the  accident  to  a  fireman  and  a.submanager 
or  manager  several  days  after  it  had  happened  is  not  giving  notice  to  the 
employer.    Hughes  v.  Coed  Talon  Colliery  Co.,  Ltd.  (1910)  2  B.  W.  C.  C.  159 

C.  A. 

70  (Wk.  Comp.  Act,  pt.  2,  §§  17,  18)  In  re  Bloom,  222  Mass.  434,  111  N.  E.  45. 
In  Reese  v.  Yale  &  Towne  Mfg.  Co.,  1  Conn.  Comp.  Dec.  154,  it  was  held 

that  where  a  workman  sustained  an  injury  to  his  foot  by  the  falling  of  an 
iron  bar,  and  went  immediately  to  his  foreman,  in  the  same  room,  and  told 
him  what  had  happened,  the  employer  had  notice  of  the  accident. 

Notice  over  the  telephone  to  the  superintendent  by  the  employe,  followed 
by  notice  over  the  telephone  by  the  sister-in-law  of  the  employe  to  the  fore- 
man, is  notice  to  the  employer.  Olson  v.  Hillman's,  a  Coii^oration,  Bulletin 
No.  1,  111.,  p.  121. 

71  Carstens  v.  Pillsbury  (Cal.  1916)  158  Pac.  218. 

72  In  re  McLean,  223  Mass.  342,  111  N.  E.  783;  State  v.  District  Court 
(Minn.)  156  N.  W.  278. 

The  injured  workman  is  not  required  to  give  written  notice  of  his  injury, 
where  the  employer  has  actual  knowledge  of  the  occurrence  thereof.  State 
ex  rel.  Northfield  v.  District  Court  (1915)  131  Minn.  352,  155  N.  W.  103;  Op. 
Atty.  Gen.  on  Minn.  Wk.  Comp.  Act,  Bui.  9,  p.  9 ;  (Gen.  St.  1913,  §  8213)  State 
ex  rel.  Duluth  Diamond  Drilling  Co.  v.  District  Court,  129  Minn.  423,  152  N. 
W.  838. 

The  insurer  contended  that  no  written  notice  of  the  injury  had  been  given, 
in  accordance  with  the  requirements  of  the  Act,  and  therefore  that  proceed- 
ings could  not  be  maintained.    It  appeared,  however,  that  the  subscriber  had 


§  210  workmen's  compensation  750 

Such  actual  knowledge  means,  in  the  case  of  a  corporation,  knowl- 
edge of  the  proper  corporate  agent.  It  does  not  mean  first-hand 
knowledge,  but  such  as  would  be  called  knowledge  in  common 
parlance/^  Where  notice  is  required,  it  should  be  given  within  a 
reasonable  time,^*  generally  a  time  prescribed  by  statute,  in  the 

substantial  knowledge  of  the  injury  to  such  an  extent  that  any  reasonable 
investigation  would  have  revealed  all  the  material  facts  and  conditions  per- 
taining to  the  case.  It  was  held  that  there  was  sufficient  notice.  MacDonald 
V.  Fidelity  &  Deposit  Co.  of  Md.,  2  Mass.  Wk,  Comp.  Cases,  529  (decision  of 
Com.  of  Arb.). 

Where  a  city  employ^  working  on  the  street  was  injured,  and  informed  the 
Superintendent  of  Public  Works,  having  charge  of  the  work,  and  the  super- 
intendent made  mention  of  the  matter  to  the  Board  of  Public  Works,  the 
employe's  failure  to  give  written  notice  wuthin  three  months  did  not  preclude 
him  from  obtaining  compensation.  (Wk.  Comp.  Act,  pt.  2,  §  IS)  Purdy  v. 
City  of  Sault  Ste.  Marie  (Mich.)  155  N.  W.  597. 

In  an  action  to  enforce  compensation  for  an  injury  to  an  employe,  the 
employer  cannot  be  regarded  to  have  been  prejudiced  by  the  failure  of  the 
employe  to  give  him  formal  notice  of  the  injury  within  ten  days  after  it 
occurred,  where  the  foreman  of  the  employer  knew  of  the  accident  when  it 
happened,  and  sent  the  employe  to  the  employer's  physician,  who  examined 
and  treated  him.    Ackerson  v.  National  Zinc  Co.,  96  Kan.  781,  153  Pac.  530. 

Where  an  employer  told  a  boy  who  had  been  injured  to  stay  at  home  for  a 
few  days  before  he  came  back  to  work,  he  cannot  say  that  he  had  no  notice 
of  the  accident,    Stevens  v.  Insoles,  Ltd.  (1912)  5  B.  W.  C.  C.  164,  C.  A. 

A  finding  of  "actual  notice"  to  the  employer  was  equivalent  to  a  finding  of 
"actual  knowledge"  of  the  injury.  State  ex  rel.  Crookston  Lumber  Co.  v. 
District  Court  (Minn.)  156  N.  W.  278. 

T3  (Wk.  Comp.  Act,  §  2,  par.  15)  Allen  v.  Millville  (1915)  87  N.  J.  Law,  356, 
95  Atl.  130,  1011;  Troth  v.  Millville  Bottle  Works  (N.  J.)  98  Atl.  435. 

7  4  In  Mackay  v.  American  Brass  Co.,  1  Conn.  Comp.  Dec.  526,  where  the 
claimant  gave  no  notice  until  18  months  after  the  alleged  injury,  and  made  no 
claim  at  all,  it  was  held  that  his  rights  had  been  barred  by  unreasonable 
neglect. 

In  Costa  V.  C.  W.  Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  457,  it  was  said 
by  Commissioner  Beers:  "The  Act  does  not  contemplate  that  a  workman 
shall  use  his  time  and  that  of  his  employer  going  back  and  forth  making 
reports  of  injuries  which  will  probably  amount  to  nothing.  Furthermore,  the 
men  employed  are  not  only  not  physicians,  but  are,  in  many  cases,  men  of  no 
high  degree  of  education  or  intelligence,  and  men  who  will,  in  the  absence  of 
pain,  entirely  fail  to  realize  the  necessity  of  any  particular  attention  at  any 


751  SETTLEMENT  OF  CONTROVERSIES  §  210 

absence  of  reasonable  cause  or  mistake  excusing  the  delay. '^^  The 
words  "accident,  mistake,  or  unforeseen  cause,"  in  a  provision  that 

particular  moment.  *  *  *  In  this  case  there  was  really  nothing  to  put 
an  ordinary  workingman  on  notice  that  the  injury  was  one  which  called  for 
any  action.  *  *  *  The  question  of  what  apparently  slight  ills  to  pass  over, 
and  what  ones  to  make  the  subject  of  investigation  and  attention,  is  one 
involving  delicate  judgment,  and  it  would  be  unfair  to  an  employ^  such  as  the 
one  in  this  case  to  hold  him  to  so  high  a  standard." 

7  5  (Pub.  Acts  1913,  c.  13S,  §  21;  Pub.  Acts  1915,  e.  288,  §§  3,  13)  Schmidt  v. 
O.  K.  Baking  Co.  (Conn.)  90  Atl.  963.  An  action  was  not  maintainable  under 
Consol.  Laws  1909,  c.  31,  §§  200-204,  where  the  notice  was  served  long  after 
the  statutory  period  and  there  was  no  sufficient  proof  excusing  the  delay. 
Connors  v.  Gross,  144  N.  Y.  Supp.  18. 

Where  the  certificate  of  a  certifying  surgeon  fixed  the  disablement  in  a 
case  of  nystagmus  more  than  six  months  before  the  certificate  was  given,  it 
was  held  that  it  was  not  reasonable  to  expect  the  workman  to  give  notice 
at  the  time  of  disablement,  when  the  surgeon  was  free  to  set  it  at  any  time 
before  the  examination.  Moore  v.  Naval  Colliery  Co.,  Ltd.  (1912)  5  B.  W.  C. 
C.  87,  C.  A. 

Delay  held  due  to  reasonable  cause:  Where  a  laborer  hired  to  open  cess- 
pools died  after  two  months  of  illness,  and  notice  was  not  given  until  two 
months  after  his  death,  because  no  one  knew,  up  to  that  time,  that  there  had 
been  an  accident  for  which  compensation  might  be  claimed.  Eke  v.  Hart- 
Dyke  (1910)  3  B,  W.  C.  C.  482,  C.  A,  Where  a  collier  believed  that  he  would 
recover  from  the  disease  of  nystagmus,  from  which  he  was  suffering,  during 
the  rest  consequent  upon  a  strike  he  knew  was  about  to  be  called,  and  so  did 
not  give  notice  until  he  found  that  there  was  no  improvement,  over  six 
months  after  the  accident.  Moore  v.  Naval  Colliery  Co.,  Ltd.  (1912)  5  B.  W. 
C.  C.  87,  C.  A.  Where  a  workman  suffered  a  fall,  and  notified  his  employer 
the  next  day,  but  did  not  claim  compensation,  as  the  only  manifest  effects 
were  slight  swelling  in  the  groin,  which  appeared  and  subsided  without  serious 
pain  three  times  in  thirteen  months,  but  finally  discovered  he  was  ruptured 
and  was  forced  to  leave  the  employment.  Coulson  v.  South  Moor  Colliery  Co. 
(1915)  8  B.  W.  C.  C.  253,  C.  A.  Where  a  workman  noticed  no  serious  effects 
of  an  internal  strain  sustained  in  November,  and  worked  until  the  following 
April,  when  he  discovered  an  aneurism,  and  immediately  informed  his  em- 
ployers. Tibbs  V.  Watts,  Blake,  Bearne  &  Co.,  Ltd.  (1909)  2  B.  W.  C.  C.  164, 
C.  A.  Where  a  saleswoman  received  a  shock  when  part  of  the  premises  where 
she  was  working  were  destroyed  by  fire,  but  did  not  know  until  more  than  six 
months  later  that  she  was  suffering  from  a  disease  which  had  been  made 
much  worse  by  the  shock.  Hoare  v.  Arding  &  Hobbs  (1912)  5  B.  W.  C.  C.  36, 
C.  A.  W^here  a  workman  who  hurt  his  elbow  in  November  did  not  anticipate 
serious  consequences,  a!nd  did  not  learn  that  it  was  fractured  until  March  8th, 


§  210  workmen's  compensation  752 

failure  to  give  notice  of  the  injury  due  to  such  cause  is  excusable 
and  shall  not  bar  compensation,  are  identical  in  legal  effect  with 

and  then  gave  the  proper  notice  on  March  18th.  Thompson  v.  Northeastern 
Marine  Engrg.  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  49,  C.  A.  Where  a  butcher's 
canvasser  considered  his  injury  received  by  a  fall  from  a  bicycle  in  September 
as  trivial,  first  realizing  that  it  was  serious  on  December  26th,  and  then  gave 
notice  of  the  accident  on  January  14th,  seven  days  after  he  had  submitted 
to  an  operation,  and  finally  died  after  several  other  operations  had  been 
performed.  Haward  v.  Rowsell  &  Matthews  (1914)  7  B.  W.  C.  C.  552,  C.  A. 
Where  a  workman,  after  an  injury  to  his  neck,  was  told  by  his  physician  that 
the  soreness  was  merely  due  to  muscular  rheumatism,  and  considered  the 
injury  trivial,  but  found  after  four  months  that  his  head  was  partly  dis- 
located, and  gave  notice  within  the  following  four  weeks.  EUis  v.  Fairfield 
Shipbuilding  &  Engineering  Co.,  Ltd.  (1913)  6  B.  W.  C.  C.  308,  Ct.  of  Sess. 
When  a  workman  felt  no  serious  effect  of  an  injury  to  his  knee  while  he  con- 
tinued at  work  until  nine  months  after  the  accident  occurred,  when  he  be- 
came unable  to  work  and  gave  notice  the  day  before  undergoing  an  operation. 
Fry  V.  Cheltenham  Corporation  (1912)  5  B.  W.  C.  C.  162,  C.  A.  Where  an 
insurance  agent,  thinking  his  injuries  in  falling  down  stairs  were  only  slight, 
gave  no  notice,  but  later  becoming  completely  incapacitated  after  he  had  left 
the  employment,  gave  notice  as  soon  as  he  became  aware  of  the  seriousness 
of  the  accident.  Refuge  Assurance  Co.,  Ltd.,  v.  Millar  (1912)  5  B.  W.  C.  C. 
522,  Ct.  of  Sess.  Where  a  bricklayer  did  not  know  that  he  had  ruptured  him- 
self in  lifting  a  heavy  load,  and,  though  noticing  a  lump  in  the  groin,  thought 
it  inconsequential,  but  gave  notice  a  month  later  when  he  found  that  he  was 
ruptured.  Zillwood  v.  Winch  (1914)  7  B.  W.  C.  C.  60,  C.  A.  Where  a  work- 
man, who  racked  the  muscles  in  his  side,  thought  he  would  recover  easily,  and 
kept  at  work  for  six  weeks,  and  then  gave  notice  when  his  injury  forced  him 
to  quit  work.  Brown  v.  Lochgelly  Iron  &  Coal  Co.,  Ltd.  (1907)  S.  C.  198,  Ct. 
of  Sess.  'WTiere  an  old,  crippled  workman,  whose  heart  was  diseased,  over- 
strained it,  but,  being  afraid  his  employers  might  refuse  to  hire  him  any 
longer,  thought  he  would  not  claim  compensation  if  he  got  well  quickly,  and 
gave  notice  only  when  he  discovered,  four  months  later,  that  he  was  perma- 
nently incapacitated.  Breakwell  v.  Clee  Hill  Granite  Co.,  Ltd.  (1912)  5  B.  W. 
C,  C,  133,  C.  A.  Where  a  workman  failed  to  give  notice  of  his  accident,  be- 
cause he  expected  to  recover  quickly,  because  he  did  not  think  his  injury 
serious,  and  because  he  did  not  think  his  injury  was  due  to  accident  within 
the  Act,  being  mistaken  in  all  three.  Rankine  v,  Alloa  Coal  Co.,  Ltd.  (1904) 
6  F.  375,  Ct.  of  Sess.  Where  a  painter  quit  work  because  of  sickness  on 
July  15th,  and  was  in  bed  from  August  to  December,  when  he  gave  notice, 
and  the  certifying  surgeon  in  February  decided  he  had  been  disabled  by  lead 
poisoning  during  the  last  week  of  July.  Sanderson  v.  Parkinson  &  Sons,  Ltd. 
(1913)  6  B.  W.  C.  C.  648,  C.  A.    Where  a  seaman,  injured  in  a  foreign  country, 


753  SETTLEMENT  OF  CONTROVERSIES  §  210 

the  words  "reasonable  cause."  ''^  The  fact  that  a  workman  did  not 
know  he  was  required  b}^  law  to  give  a  notice  is  not  a  mistake  dis- 
pensing with  the  notice. ^^     Failure  to  give,  or  delay  in  giving,  the 

chose  to  remain  there  until  he  had  improved,  instead  of  accepting  the  three 
opportunities  offered  him  to  return  as  a  distressed  sailor,  being  all  the  time 
imder  medical  care.  Dight  v.  Owners  of  S.  S.  Craster  Hall  (1913)  6  B.  W.  C. 
C.  674,  C.  A. 

Delay  held  not  due  to  excusahle  mistake:  Where  a  workman,  who  was  in- 
jured by  a  fall  upon  his  head,  gave  a  verbal  notice  to  his  employer,  who  noted 
it  in  a  book,  and  gave  no  other  notice,  because  he  thought  that  was  sufficient, 
Clapp  V.  Carter  (1914)  7  B.  W.  C.  C.  28,  C.  A.  Where  a  workman  bruised  his 
thigh,  and  three  days  later  gave  notice  to  the  subcontractor,  expecting  that 
he  would  inform  the  principal  employer,  but  he  did  not  do  so,  and  conse- 
quently the  employer  did  not  know  of  the  accident  until  four  months  later. 
Griffiths  V.  Atkinson  (1912)  5  B.  W.  C.  C.  345,  C.  A.  Where  a  workman  who 
was  injured  kept  on  working,  and  gave  his  employer  no  notice  because  he 
thought  he  would  soon  get  well,  and  so  not  need  to  claim  compensation.  Web- 
ster V.  Cohen  Bros.  (1913)  6  B.  W.  C.  C.  92,  C.  A.  Where  a  workman  gave 
no  notice  of  an  injury  to  his  tongue,  a  laceration  caused  by  a  ragged  tooth 
when  he  was  hit  upon  the  head,  for  over  six  months,  because  he  thought  there 
would  be  no  serious  result,  but  after  working  and  taking  doctor's  treatment 
for  that  time  had  cancer  of  the  tongue  set  in,  causing  his  death.  Potter  v. 
Welch  &  Sons,  Ltd.  (1914)  7  B.  W.  C.  C.  73S,  C.  A. 

Question  of  fact. — Where  a  workman  informed  his  foreman  of  an  injury  to 
his  knee  a  few  days  after  it  happened  in  June,  but  did  not  notify  his  em- 
ployers until  November,  and  the  trial  judge  found  his  delay  was  due  to  a 
mistake  in  believing  that  notice  to  the  foreman  was  proper  and  sufficient,  the 
question  of  mistake  was  held  to  be  a  question  of  fact,  of  which  there  was  no 
evidence  in  this  case.  Pimm  v.  Clement  Talbot,  Ltd.  (1914)  7  B.  W.  C.  C. 
565,  C.  A. 

76  Donahue  v.  R.  A.  Sherman's  Sons  Co.  (R.  I.)  98  Atl.  109. 

Where,  during  the  thirty-day  period  during  which  he  should  have  given 
notice  of  the  injury,  the  workman  was  desperately  ill  as  the  result  of  a 
major  abdominal  operation,  and  was  in  a  condition  of  great  physical  weak- 
ness, in  a  hospital,  among  strangers,  and  a  considerable  distance  from  his 
home  and  his  employer's  place  of  business,  the  fact  that  he  "could  have  sent 
word"  to  his  employer  did  not  show  such  inexcusable  neglect  as  to  put  the 
case  outside  the  exception  of  failure  dae  to  "accident,  mistake,  or  unfore- 
seen cause."    Id. 

7  7  Bramley  v.  Evans  &  Sons  (1909)  3  B.  W.  C.  C.  .34,  C.  A. 
The  allegation  that  a  workman  did  not   give  notice  because  he  did  not 
know  of  the  existence  of  the  Compensation  Act  is  not  such  a  mistake  as  to 
HoN.CoMP. — 48 


§  210  workmen's  compensation  '    754 

statutory  notice,  is  not  fatal  to  recovery,  however,  where  the  em- 
ployer was  not  prejudiced, ^^  but  the  burden  of  proving-  want  of 

afforfl  an  excuse  from  giving  notice.  Roles  v.  Pascall  &  Sons  (1911)  4  B.  W. 
C.  C.  148,  C.  A.  Failure  of  a  workman  to  claim  compensation  within  six 
months  is  not  excused  because  he  did  not  know  his  rights  under  the  Act. 
Melville  v.  McCarthy  (1913)  47  Ir.  L.  T.  R.  57. 

Where  a  housemaid's  employers  paid  her  full  wages  during  her  incapacity 
due  to  an  injured  knee,  and  gave  her  a  month's  wages  when  she  left  the  em- 
ployment, and  she  made  no  claim  for  compensation  for  nineteen  mouths,  be- 
cause she  did  not  know  there  was  an  Act  of  Parliament  entitling  her  to 
compensation,  her  mistake  is  not  such  as  to  justify  the  failure  to  notify  of 
the  accident  and  claim  compensation.  Judd  v.  Metropolitan  Asylums  Board 
(1912)  5  B.  W.  O.  G.  420,  C.  A. 

7s  Pollett  V.  Indus.  Com.  of  Wis.,  162  Wis.  596,  156  N.  W.  956;  Stewart  v. 
Pacific  Mail  Steamship  Co.,  2  Cal.  I,  A.  C.  Dec.  5S3 ;  (Pub.  Acts  1913,  c.  138, 
pt.  B,  §  21)  Schmidt  v.  O.  K.  Baking  Co.,  90  Conn.  217,  9G  Atl.  963 ;  Brewer  v. 
Belcher,  1  Conn.  Comp.  Dec.  111. 

That  written  notice  of  the  accident  w:1s  not  given  to  the  employer  within 
ten  days  does  not  relieve  him  from  liability  for  compensation,  unless  he  was 
prejudiced  by  such  lack  of  notice.  Knoll  v.  City  of  Salina,  98  Kan.  428,  157 
Pac.  1167. 

Section  20  of  the  Act  is  understood  by  the  Commission  to  refer  solely  to 
the  employer's  being  placed  at  a  disadvantage  in  making  his  defense  on  the 
merits  of  the  claim,  and  if,  because  of  failure  to  give  notice,  the  employer's 
witnesses  have  gone  away,  or  other  sources  of  evidence  cannot  be  made 
available  for  defense,  the  defendant  will  be  deemed  to  have  been  prejudiced, 
and  the  claim  will  be  barred;  but,  where  the  facts  of  injury  and  disability 
are  agreed  to,  prejudice  in  making  defense  to  the  merits  of  the  claim  on  the 
facts  cannot  be  urged  as  a  defense.  Telford  v.  Healy-Tibbitts  Cons.  Co.,  3 
Cal.  I.  A.  C.  Dec.  41. 

Employer  not  prejudiced. — Where  a  driver  of  an  ice  wagon  receives  a  kick 
on  the  leg  from  a  horse,  but,  believing  it  not  to  be  serious,  makes  no  com- 
plaint, and  after  six  weeks,  upon  being  examined  by  a  physician,  it  is  found 
that  the  leg  had  been  partially  fractured,  and  the  employer  is  not  misled  or 
prejudiced,  the  applicant  is  under  the  exception  contained  in  section  20  of 
the  Compensation  Act,  and  entitled  to  compensation.  Yates  v.  Union  Ice  Co., 
2  Cal.  I.  A.  C.  Dec.  424.  Failure  to  report  an  injury  to  the  employer  within 
the  period  prescribed  by  law,  where  such  failure  is  not  due  to  any  attempt 
to  mislead  or  prejudice  the  employer's  right,  and  where  abundant  opportunity 
is  afforded  the  employer  to  produce  any  witnesses  that  might  have  been  pro- 
duced at  an  earlier  date,  does  not  prejudice  the  rights  of  the  employer,  and 
does  not  constitute  a  defense  to  the  application  for  compensation.  Johnson 
v.  Sudden  &  Christenson,  1  Cal.  I.  A.  C.  Dec.  422.     Where  an  employe  fails 


755  SETTLEMENT  OF  CDN'tiaDYERSIES  §  210 

at  the  time  of  an  accident  to  notify  liis  employer  of  a  mere  scratch  received 
by  him,  but  does  -so  notify  him  four  days  afterward,  by  which  time  a  serious 
infection,  probat,ly  received  at  the  time  of  the  accident,  has  set  in,  and  the 
employ^  had  no  intent  to,  and  did  not,  mislead  or  prejudice  his  employer  by 
his  failure  to  report,  the  employer  is  liable  for  the  necessary  medical  serv- 
ices. Wilson  v.  American  Co.,  2  Cal.  I.  A.  C.  Dec.  898.  Where  a  carpenter 
sustained  an  accident  on  the  1st  of  June,  his  knee  being  struck  by  a  falling 
timber,  and  he  continued  to  do  his  work  without  complaint  to  the  employer 
until  the  7th  of  June,  when  the  work  was  completed,  the  knee  paining  him 
slightly  from  the  date  of  accident  during  the  months  of  June  and  July,  but. 
not  sufficiently  to  cause  him  to  consult  a  physician  or  inform  his  employer^ 
and  about  the  middle  of  August  his  knee  began  to  swell,  causing  him  to  gO' 
to  a  physician  on  the  30th  of  August,  when  it  was  ascertained  that  he  had 
prepatellar  bursitis,  and  he  further  neglected  to  notify  his  employer  of  the 
accident  or  his  injury  until  the  13th  of  September,  when  he  filed  his  applica- 
tion with  the  Commission,  these  facts  alone  did  not  show  an  "intention  to 
mislead  or  prejudice  the  employer,"  or  that  he  was  "in  fact  misled  or  preju- 
diced thereby,"  as  these  words  are  used  in  section  20  of  the  Act.  Telford  v. 
Healy-Tibbitts  Cons.  Co.,  3  Cal.  I,  A.  C.  Dec.  41,  disapproving  Miles  v.  Hunt- 
ington Beach  Hardware  Co.,  2  Cal.  I.  A.  C.  Dec.  422.  islcw  York.  Where  the 
employe  did  not  give  notice  of  his  injury,  because  he  did  not  think,  and  it 
did  not  appear,  that  it  was  serious,  and  the  employer  made  no  contention 
that  the  accident  did  not  occur,  and  probably  would  not  have  appreciated 
the  danger  of  the  resulting  cancer  any  more  than  the  workman,  it  was  held 
there  was  no  prejudice  by  the  delay  in  giving  notice.  Richardson  v.  Builders' 
Exchange  Ass'n,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10,  p.  18.  Wisconsin.  Where 
an  employe,  injured  on  January  20,  did  not  give  his  employers  notice  until 
April  20,  but  had  no  intention  to  mislead  them  by  not  giving  notice,  and 
they  were  not  prejudiced  by  his  failure,  his  action  was  not  barred  by  his 
laches.  Bakiewicz  v.  National  Brake  &  Electric  Co.,  Rep.  Wis.  Indus.  Com. 
1914-15,  p.  11.  Where  the  applicant  did  not  intend  to  mislead  his  employer, 
a  municipality,  by  his  failure  to  serve  notice  of  claim,  and  the  city  was  not 
in  fact  misled  thereby,  compensation  was  awarded.  Brown  v.  City  of  Maus- 
ton,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  97.  England.  Where  a  part  of  the 
shop  in  which  a  saleswoman  was  working  was  burned  in  December,  and 
she  suffered  a  shock,  which  was  found  six  months  later  to  have  aggravated 
a  nervous  disease  which  she  first  discovered  at  that  time,  the  injury  not 
appearing  to  be  serious  before  that  time  (August),  and  gave  notice  a  little 
over  a  month  later  (in  October),  the  employers  were  not  prejudiced  in  their 
defense  by  her  delay,  as  notice  could  have  done  them  no  good  if  it  had  been 
given  earlier.  Hoare  v.  Arding  &  Hobbs  (1912)  5  B.  W.  C.  C.  36,  C.  A. 
Where  a  waitress  told  her  employer  of  an  accident  the  same  day  that  it  hap- 
pened, which  was  in  June,  but  she  suffered  no  illness  until  August,  and  then 
did  not  know  that  the  illness  was  caused  by  the  accident  until  November, 
but  gave  notice  in  November  or  December,  her  employers  were  not  preju- 


§  210  workmen's  compensation  756 

diced.  Eaton  v.  Evans  (1912)  5  B.  W.  C.  C.  82,  C.  A.  Where  a  workman  did 
not  know  that  an  injury  to  his  knee  was  serious  until  he  had  worked  nine 
months  after  it  occurred,  but  kiter,  having  to  submit  to  an  operation  upon  it. 
gave  his  employers  notice  of  the  accident  the  day  before  his  operation,  they 
were  not  in  fact  prejudiced.  Fry  v.  Cheltenham  Corporation  (1912)  5  B.  W. 
C.  C.  162,  C.  A.  Where  an  employer's  overman  visited  an  injured  boy  within 
an  hour  after  the  accident,  and  wrote  down  the  full  particulars  as  they  were 
told  him  in  a  book  supplied  for  that  purpose  by  the  employers,  a  contention 
that  they  were  prejudiced  by  lack  of  notice  is  unsupportable.  Stevens  v. 
Insoles,  Ltd.  (1912)  5  B.  W.  C.  C.  164,  C.  A.  Where  a  workman  continued  to 
work  for  two  days  after  an  accident  to  his  foot,  then  after  laying  off  for  a 
week  again  worked  for  six  weeks,  believing  that  his  illness  was  due  to 
rheumatism,  and  then  was  found  to  have  gangrene  in  the  foot,  necessitating 
its  amputation,  the  employers  being  fully  informed  of  his  progress  from 
time  to  time,  and  paying  him  part  wages  while  he  was  not  working,  they 
were  not  prejudiced.  Stinton  v.  Brandon  Gas  Co.,  Ltd.  (1912)  5  B.  W.  C.  C. 
42G,  C.  A.  Where  the  employer's  clerk  and  cashier,  knowing  of  the  accident, 
visited  the  injured  workman,  paid  him  his  wages  during  his  illness,  and  ap- 
pointed and  paid  his  substitute,  the  employer  was  not  prejudiced  in  his  de- 
fense, and  the  fact  that  they  were  hindered  by  his  failure  to  give  notice  from 
themselves  giving  notice  to  their  insurance  company  is  not  relevant,  as  the 
prejudice  must  be  "in  his  defense."  Butt  v.  Gellyceidrim  Colliery  Co.,  Ltd. 
(1900)  3  B.  W.  C.  C.  44,  C.  A.  Where  a  workman's  old  rupture  came  down 
while  he  was  working,  and,  on  informing  his  employer,  made  an  agreement 
whereby  he  received  half  pay  while  he  went  to  the  hospital  for  an  operation, 
and  did  not  give  written  notice  for  more  than  four  mouths,  the  employer 
was  not  prejudiced  by  not  receiving  the  notice.  Ralph  v.  Mitchell  (1913)  6 
B.  W.  C.  C.  678,  C.  A. 

Employer  prejudiced. — Where  notice  of  injury  within  thirty  days  of  its 
occurrence  would  have  enabled  the  employer  to  supply  medical  treatment 
which  would  have  averted  the  disability  actually  incurred,  he  was  prejudiced 
by  want  of  notice  and  the  claim  for  compensation  is  barred.  Tarter  v.  Asso- 
ciated Oil  Co.,  2  Cal.  I.  A.  C.  Dee.  848.  Connecticut.  In  Dube  v.  Clayton 
Bros.,  Inc.,  1  Conn.  Comp.  Dec.  441,  where  a  workman  alleging  traumatic 
iippendicitis  gave  no  notice,  except  a  telephone  message  saying  he  had  ap- 
pendicitis and  could  not  work,  without  mentioning  the  injury,  it  was  held 
he  could  not  recover,  and  that  the  employer  was  necessarily  prejudiced  by 
having  no  chance  for  medical  examination,  to  determine  whether  there  was 
any  connection  between  his  condition  and  the  alleged  injury.  In  Gaherty  v. 
International  Silver  Co.,  1  Conn.  Comp.  Dec.  403,  where  the  employe  did  not 
notify  his  employer  for  nearly  eight  months  after  the  accident,  when  it  was 
too  late  to  either  provide  for  an  examination  disclosing  the  nature  of  the  in- 
fection, and  the  treatment  required,  or  to  procure  any  evidence  as  to  its 
cause,  the  employer  was  prejudiced  by  lack  of  notice,  and  was  not  liable  for 
compensation.    In  Allard  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dee. 


757  SETTLEMENT  OF  CONTROVERSIES  §  210 

3S5,  where  the  employ^  did  not  notify  his  employer  of  the  injury  alleged  until 
six  months  after  it  had  occurred,  the  employer  had  no  opportunity  to  furnish 
medical  treatment,  and  so  avoid  prolonged  disability,  and  cannot  be  held  for 
compensation.  In  Burke  v,  Shepard,  1  Conn.  Comp.  Dec.  106,  it  was  held 
that  where  an  employ^  failed  to  report  his  injury  promptly,  and  did  not  pro- 
cure medical  treatment,  thereby  lengthening  the  period  of  incapacity,  the 
employer  was  prejudiced  by  the  want  of  notice,  and  was  liable  only  for  the 
normal  period  of  disability.  Neio  York.  Where  the  cause  of  claimant's  can- 
cer of  the  bone  was  doubtful  on  the  evidence  presented,  but  it  appeared  that 
the  employer  had  no  notice  of  the  Injury  until  after  the  employe's  leg  had 
been  amputated  and  he  had  recovered,  and  had  had  no  opportunity  to  make 
an  investigation  as  to  the  accident,  or  to  obtain  medical  testimony  bearing 
on  the  cause  of  the  disease,  it  was  held  that  the  employer  was  prejudiced  by 
the  failure  to  give  notice,  and  that  the  employe  could  not  recover.  Marcon- 
tonio  V.  The  Charles  Francis  Press,  The  Bulletin,  N.  Y.,  vol.  1,  No.  12,  p.  16. 
England.  Where  a  workman  sought  to  justify  his  laches  in  giving  notice  by 
alleging  that  the  employers  had  not  been  prejudiced  in  their  defense,  but 
medical  evidence  showed  that  the  physician  was  better  able  to  tell  whether 
the  rupture  was  old  or  new  the  sooner  the  examination  occurred  after  the  ac- 
cident, the  workman  had  not  established  that  his  employers  were  not  prej- 
udiced. Nicholls  V.  Briton  Ferry  U.  D.  C.  (1915)  8  B.  W.  C.  C.  42,  C.  A. 
Where  an  injured  workman  kept  on  working  with  a  bandage  on  the  hand 
which  had  been  injured,  and  it  healed,  and  he  attributed  subsequent  pain  to 
gout,  when  it  was  really  due  to  septic  poisoning,  and  then,  after  discovering 
the  poisoning,  waited  twenty-two  days  before  giving  notice,  and  died  two  days 
after,  there  was  no  evidence  to  justify  a  finding  that  the  employers  were  not 
prejudiced.  Eydmann  v.  Premier  Accumulator  Co.  (1915)  S  B.  W.  C.  C.  121, 
C.  A.  Where  a  stage  cai-penter,  after  running  a  splinter  in  his  hand,  told  the 
foreman,  and  died  of  blood  poisoning  ten  days  later  in  spite  of  an  operation, 
his  employers  not  being  notified  until  two  weeks  after  his  death,  the  fact  that 
they  were  given  notice  of  the  date  of  the  inquest  is  not  sufficient  to  show  that 
they  were  not  prejudiced  in  this   case.     Ford  v.   Gaiety  Theater  Co.,  Ltd. 

(1914)  7  B.  W.  C.  C.  197,  C.  A.  Where  a  workman  injured  his  finger  on  Wed- 
nesday, kept  on  working  until  Saturday,  when  the  pain  forced  him  to  quit, 
but  gave  no  notice  of  the  accident  until  Monday,  when  septic  poisoning  set 
in,  and  necessitated  the  amputation  of  the  finger,  there  was  no  evidence  that 
the  employer  was  not  prejudiced,  since  he  might  have  sent  a  doctor,  and  so 
prevented  a  cause  for  compensation  from  arising.    Walsell  v.  Russell  &  Sons 

(1915)  8  B.  W.  C.  C.  230,  C.  A.  Where  a  cotton  operator  had  a  cut  in  his 
thumb  dressed  by  the  first-aid  man,  but,  although  the  pain  continually  in- 
creased, did  not  consult  a  doctor  for  a  month,  and  gave  no  notice  of  the  in- 
jury to  his  employer  until  a  short  time  before  the  discovery,  upon  consulting 
a  doctor,  of  septic  poisoning,  there  was  nothing  to  show  that  his  employers 
were  not  prejudiced.     Dalgiesh  v.  Gartside  &  Co.,  Ltd.  (1914)  7  B.  W.  C.  C: 


§  210  workmen's  compensation  758 

535,  C.  A.  Where  a  workman  told  a  "leading  hand"  in  July  that  he  had  strain- 
ed himself,  and  on  being  discharged  in  October  filed  on  October  13th,  eleven 
days  after  his  dismissal,  a  written  notice  of  the  accident,  which  he  alleged 
caused  a  rupture,  and  the  evidence  showed  some  doubt  as  to  whether  the  ac- 
cident in  July  caused  the  rupture,  the  evidence  does  not  justify  a  finding  that 
the  employer  was  not  prejudiced.  Hancock  v.  British  Westinghouse  Electric 
Co.  (1910)  3  B.  W.  C.  C.  210,  C.  A.  Where  a  navvy  showed  his  employer  a  bruise 
on  his  chest  sustained  from  the  handle  of  his  pick  the  day  before,  and  after 
a  lay-off  of  a  few  days  began  work  with  another  employer,  and  suffered 
continual  pain,  an  abscess  forming  in  February,  three  months  after  which  he 
entered  a  hospital,  and  two  months  after  that  claimed  compensation,  there 
was  nothing  to  show  that  the  employers  were  not  prejudiced  in  their  de- 
fense. Egerton  v.  Moore  (1912)  5  B.  W.  C.  C.  284,  C.  A.  Where  a  workman 
told  the  overseer  measurer  of  his  accident  at  the  time  of  its  happening,  but 
his  employer  did  not  learn  of  it  until  four  months  after  his  recovery,  the 
employer  must  have  been  seriously  prejudiced,  and  there  was  no  evidence  that 
he  was  not.  Jackson  v.  Vickers,  Ltd.  (1912)  5  B.  W.  C.  C.  432,  C.  A.  Where 
a  dock  laborer  suffered  an  accident  causing  acute  infective  periostitis,  and 
subsequently  pyaemia,  and  the  only  notice  ever  given  of  the  accident  was 
an  oral  notice  to  the  employer's  ambulance  man  some  3%  weeks  after  the 
accident  occurred,  the  employers  were  prejudiced  by  his  failure  to  give  notice. 
Coltman  v.  Morrison  &  Mason,  Ltd.  (1914)  7  B.  W.  C.  C.  194,  C.  A.  Where  a 
workman  worked  nine  days  after  an  accident  to  his  foot,  which  occurred  on 
December  15th,  and  was  admitted  to  a  hospital  on  January  2d  for  the  am- 
putation of  the  foot,  but  did  not  notify  his  employers  until  April,  they  were 
prejudiced  by  his  failure  to  notify,  since  at  the  time  of  the  notice  being  given 
the  doctors  could  not  tell  whether  or  not  the  accident  caused  the  disease. 
Stronge  v.  Hazlett,  Ltd.  (1909)  3  B.  W.  C.  C.  581,  C.  A.  Where  a  carpenter 
alleged  that  he  sent  a  message  that  he  had  sprained  his  ankle,  to  his  fore- 
man, but  the  foreman  denied  it,  and  written  notice  was  not  given  until  two 
months  later,  the  employers  were  prejudiced  in  that  the  chance  of  a  thorough 
investigation  of  the  accident  was  lost  them  by  the  delay  in  giving  notice,  and 
the  workman,  therefore,  cannot  recover.  Burrell  v.  Holloway  Bros.  (London) 
Ltd.  (1911)  4  B.  W.  C.  C.  289,  C.  A.  Where  a  fish  porter  alleged  an  injury  in 
being  pricked  in  the  finger  with  a  fish  bone,  and  was  later  operated  on  for 
blood  poisoning,  but  gave  no  notice  until  four  weeks  after  the  accident,  and 
the  employer  showed  that  the  cause  of  the  blood  poisoning  might  have  been 
determined  by  the  doctors  if  they  had  had  a  chance  to  make  an  earlier  inves- 
tigation, and  that  his  witnesses  had  trouble  in  remembering  accurately  on  ac- 
count of  the  lapse  of  time,  he  was  held  to  have  been  prejudiced  in  his  defense. 
Ungar  v.  Howell  (1914)  7  B.  W.  C.  C.  36,  C.  A.  Where  a  miner  was  ordered 
by  his  employer's  doctor  to  quit  work  because  a  scratch  on  his  hand  was 
becoming  worse,  after  working  five  days  after  the  accident,  but  gave  no  no- 
tice for  fourteen  days,  there  was  no  proof  that  the  employers  were  not  preju- 


759  SETTLEMENT  OF  CONTROVERSIES  §  210 

prejudice  rests  on  the  claimant,'^^  If  the  employe  gives  evidence 
from  which  it  may  reasonably  be  inferred  that  the  employer  has  not 

diced.  Snelling  v.  Norton  HUl  Colliery  Co.,  Ltd.  (1913)  6  B.  W.  O.  C.  506, 
C.  A.  Where  a  cabdrlver  gave  no  notice  of  an  accident  occurring  July  12ta 
until  a  month  later,  when  he  had  practically  recovered,  and  his  testimony 
that  he  gave  verbal  notice  within  a  day  or  two  of  the  accident  was  disput- 
ed by  the  employer,  the  employer  was  held  to  have  been  prejudiced.  Leach 
V.  Hicksou  (1911)  4  B.  W.  C.  C.  153,  C.  A.  Where  notice  of  a  second  accident, 
sustained  by  a  workman  in  the  course  of  doing  light  work  assigned  him  after 
the  first  injury,  was  not  given  for  3%  weeks  after  it  happened,  but  an  award 
for  the  workman  was  entered  without  any  finding  on  the  question  of  notice 
or  any  further  evidence  upon  it,  such  award  was  set  aside  because  it  was 
not  shown  that  the  employers  were  not.  prejudiced  in  their  defense.  Lacey  v. 
Mowlem  &  Co.,  Ltd.  (1914)  7  B.  W.  C.  C.  135,  C.  A.  Where  a  workman  sus- 
tained an  injury  to  his  thumb  on  February  19th,  but  considered  it  inconse- 
quential, and  then  accidentally  reopened  it  on  March  10th,  and  on  consulting 
a  physician  found  he  had  blood  poisoning,  which  resulted  in  his  death  on 
March  27th,  he  should  have  given  notice  by  at  least  the  time  he  found  he 
had  blood  poisoning,  and  the  employers  were  prejudiced  by  his  failure  to 
do  so.    Taylor  v.  Nicholson  &  Son  (1915)  8  B.  W.  C.  C.  114,  C.  A. 

7  9  Where  a  workman  died  after  suffering  eight  days  from  septic  poison- 
ing due  to  an  accident,  without  giving  his  emploj'er  notice,  it  cannot  be  main- 
tained without  positive  evidence  that  the  employers  were  not  prejudiced  in 
their  defense,  and  to  succeed  the  workman  must  produce  such  evidence.  Tay- 
lor V.  Nicholson  &  Sons  (1915)  8  B.  W.  C.  C.  114,  C.  A.  Where  a  workman 
died  on  January  21st  from  an  injury  received  December  23d,  and  the  de- 
pendents, claiming  compensation,  offered  no  evidence  whatever  to  show  that 
the  employer  was  not  prejudiced  by  not  receiving  any  notice  until  January 
29th,  they  cannot  succeed.  Hunt  v.  Highley  Mining  Co.,  Ltd.  (1914)  7  B.  W. 
C.  C.  716,  C.  A.  Where  a  charwoman  fell  on  her  own  stairs  as  a  result  of 
a  fall  the  day  previous  on  her  employer's  stairs,  and  fractured  her  kneecap, 
and  notice  of  the  injury  was  not  given  for  three  weeks  after,  she  must  dis- 
charge the  burden  of  showing  that  the  employers  were  not  prejudiced,  and, 
not  having  done  so,  must  fail  in  her  claim.  Hodgson  v.  Robins,  Hay,  Waters 
&  Hay  (1914)  7  B.  W.  C.  C.  232,  0.  A.  Where  a  patient  in  a  hospital  was 
found,  after  being  there  six  weeks,  to  be  suffering  of  heart  strain,  and  after 
a  month  gave  notice  of  an  accident  and  sudden  strain  alleged  to  have  oc- 
curred four  months  before  the  notice,  and  on  trial  his  evidence  was  not  suffi- 
cient to  prove  that  the  employers  had  not  been  prejudiced,  his  case  must  fail. 
Ing  V.  Higgs  (1914)  7  B.  W.  C.  C.  65,  C.  A.  Where  an  injured  workman  gave 
oral  notice  to  the  employer's  manager  two  days  after  the  accident,  but  gave 
no  written  notice  until  four  and  five  months  later,  the  three  notices  which 
he  then  gave  differing  in  the  particulars  of  the  accident,  it  must  be  inferred. 


§  210  workmen's  compensation  760 

been  prejudiced  by  failure  to  give  notice,  the  burden  of  proving 
prejudice  is  cast  upon  the  employer.^*'  Any  payment  of  compensa- 
tion will  operate  to  waive  notice."^  It  is  frequently  required,  as  by 
the  British  Act,  that  the  notice  be  in  writing,^-  and  that  it  be  given 
as  soon  as  practicable  after  the  injury. ^^     A  defect  in  the  notice 

in  absence  of  evidence  to  the  contrary,  tliat  the  employers  were  prejudiced 
by  the  laches.  Hughes  v.  Coed  Talon  Colliery  Co.,  Ltd.  (1909)  2  B.  W.  C.  C. 
159,  C.  A. 

Where,  in  the  case  of  a  collier,  who  was  taken  to  a  hospital  suffering  with 
an  abraded  knee  four  days  after  the  accident,  and  died  there  five  days  later, 
death  being  due  to  blood  poisoning,  the  claimants  introduced  evidence  from 
which  it  might  reasonably  be  concluded  that  the  employer  was  not  preju- 
diced by  the  fact  that  no  notice  was  given  until  after  the  workman's  death, 
he  must  produce  evidenee  to  rebut  such  conclusion,  or  he  cannot  succeed. 
Hayward  v.  W^estleigh  Colliery  Co.,  Ltd.  (1915)  8  B.  W.  C.  C.  278,  H.  L.,  and 
(1914)  7  B.  W.  C.  C.  53,  C.  A. 

Question  of  fact. — Where  a  sheriff-substitute  held  that,  because  a  work- 
man had  failed  to  give  notice  of  an  accident  for  three  weeks  after  it  hap- 
pened and  left  the  employ  without  doing  it,  the  employer  was  prejudiced, 
this  is  a  question  of  fact,  and  must  be  decided  as  such,  and  not  as  a  question 
of  law  determined  by  a  rule.  M'Lean  v.  Carse  &  Holmes  (1899)  1  F.  878,  Ct. 
of  Scss. 

80  Telford  v.  Healy-Tibbitts  Cons.  Co.,  3  CaL  L  A.  C.  Dec.  41. 

81  (St.  1915,  §  2394—11)  Pellett  v.  Indus.  Com.  of  W^is.,  162  Wis.  590,  156 
N.  W.  956. 

Payment  by  the  employers  of  part  wages  for  seven  weeks  during  the  ill- 
ness of  a  miner  suffering  from  tubercular  trouble,  which  was  revived  by 
spraining  his  ankle,  and  from  which  he  finally  died,  is  a  waiver  of  notice 
by  the  employers.  Davies  v.  Point  of  Ayr  Collieries,  Ltd.  (1910)  2  B.  W.  C, 
C.  157,  C.  A.  Where  employers  paid  compensation  during  a  workman's  in- 
capacity under  an  unregistered  agreement,  but  when  he  later  became  in- 
capacitated again  denied  liability,  alleging  that  they  were  prejudiced  by  his 
not  giving  them  notice,  they  were  estopped  from  setting  up  this  defense  by 
their  former  payments.  Turnbull  v.  Vickers,  Ltd.  (1914)  7  B.  W.  C.  C.  396, 
C.  A. 

82  Stevens  v.  Insoles,  Ltd.  (1912)  5  B.  W.  C.  C.  164,  C.  A. 

What  constitutes  written  notice. — W^here  a  manager  entered  in  a  book  sup- 
plied by  the  company  for  that  purpose  the  details  of  an  accident  to  a  boy, 
as  given  him  by  the  boy's  father  in  his  presence,  such  entries  constituted  writ- 
ten notice  to  the  employers  of  the  accident.    Id. 

83  A  claim  filed  at  least  four  months  after  the  injury,  if  considered  as  a 
notice,  was  not  given  "as  soon  as  practicable  after  the  happening  thereof-" 


761  SETTLEMENT  OF  CONTROVERSIES  §  211 

or  in  its  service  is  no  bar  to  a  recovery,  unless  prejudice  has  re- 
sulted to  the  employer  because  of  such  defect.^* 

While  strict  conformity  with  business  practices  is  not  required 
from  employes  in  regard  to  notice  of  injury,  under  the  Connecticut 
Act,  where  an  employe  allows  his  employer  to  remain  in  ignorance 
for  a  considerable  period  of  time,  and  then  makes  claim  for  com- 
pensation or  medical  fees,  the  burden  of  proof  rests  more  heavily 
upon  him  than  where  the  injury  is  promptly  reported. ^°  Where  the 
workman  gave  no  notice  of  the  injury  to  his  employer,  and  the 
employer  had  no  knowledge  whatever  of  the  injury,  until  notified 
by  the  employe's  physician  one  day  before  the  expiration  of  the 
thirty-day  period,  provided  for  in  this  Act,  the  employer  is  lia- 
ble for  medical  expense  for  that  one  day  only.^^ 

§  211.     Notice  to  principal 

Where  a  contractor  against  whom  a  workman  has  obtained  an 
award  under  the  British  Act  becomes  bankrupt,  the  workman 
should  give  the  principal  a  separate  notice  and  claim  before  en- 
tering claim  against  him,^^    Since  there  is  nothing  in  the  California 

In  re  Bloom,  222  Mass.  434,  111  N.  E.  45.  Notice  must  be  given  as  soon  as 
practicable.  Leacli  v.  Hickson  (1911)  4  B.  W.  C.  0.  153;  Burrell  v.  Holloway 
Bros.,  Ltd.,  4  B.  W.  C.  C.  239;  Hunt  v.  Highley  Mining  Co.,  Ltd.  (1914)  W. 
C.  &  Ins.  Rep.  406. 

Where  notice  of  a  rupture  was  not  given  by  a  workman  until  the  third 
day  after  the  accident,  it  was  not  given  as  soon  as  practicable.  Nicholls  v. 
Briton  Ferry  U.  D.  0.  (1915)  8  B.  W.  C.  C.  42,  C.  A.  Where  a  hairdresser's 
assistant  noticed  symptoms  of  dermatitis  on  January  17th,  left  the  employ- 
ment the  last  of  March,  and  gave  no  notice  until  in  April,  such,  notice  was 
not  given  as  soon  as  practicable,  and  there  is  no  ground  for  recovery.  Pet- 
schelt  V.  Preis  (1915)  8  B.  W.  C.  C.  44,  C.  A. 

S4  (Laws  1911,  c.  218,  §  22;  Laws  1913,  c.  216,  §  6)  Roberts  v.  Packing  Co., 
95  Kan.  723,  149  Pac.  413;  Ackerson  v.  National  Zinc  Co.,  96  Kan.  781,  l53 
Pac.  530. 

8  5  Waters  v.  Jewell  Belting  Co.,  1  Conn.  Comp.  Dec.  511. 

86  Joeogan  v.  Hershman,  1  Conn.  Comp.  Dec.  229. 

87  Meier  v.  Dublin  Corporation  (1912)  2  Ir.  R.  129,  C.  A. 


§  212  workmen's  compensation  762 

Act  requiring  an  injured  employe  of  a  contractor  to  notify  the  prin- 
cipal, the  principal  is  liable,  notwithstanding  any  want  of  notifica- 
tion of  the  fact  of  injury,  unless  the  statute  of  limitations  has  run.^^ 

§  212.     Compensation  claims — Sufficiency — Abatement 

The  compensation  claim  need  ordinarily  state  no  more  than  the 
time,  place,  cause,  and  nature  of  the  injury.^®  Any  statement,  oral 
or  written,  made  within  the  proper  time,  by  which  the  injured  em- 

8  8Neel  V.  White,  2  Cal.  I.  A.  C.  Dec.  933. 

8  9  (St.  1911,  c.  751,  pt.  2,  §§  15,  23,  as  amended  by  St.  1912,  c.  571,  §  5)  Le- 
mieux  v.  Contractors'^  Mut.  Liab.  Ins.  Co.,  223  Mass.  346,  111  N.  E.  782. 

Siifficiency  of  alleged  claims. — Where  an  engine  cleaner,  who  had  been 
injured,  made  no  claim  for  compensation,  except  to  file  an  application  for 
arbitration,  doing  so  within  the  limit  of  time  required  for  a  claim,  his  request 
for  compensation  constituted  a  recognizable  claim,  and  no  other  was  neces- 
sary. Fraser  v.  Great  North  of  Scotland  Ry.  Co.  (1901)  3  F.  908,  Ct.  of  Sess. 
Where  a  workman,  in  making  his  verbal  claim  for  compensation  to  the  man- 
ager of  the  works,  did  not  state  the  amount  claimed,  the  court  was  in  error 
in  holding  such  statement  to  be  necessary.  Thompson  v.  Gould  &  Co.,  Ltd. 
(1910)  3  B.  W.  C.  C.  392,  H.  L.,  and  2  B.  W.  C.  C.  166,  C.  A.  Where  a  work- 
man made  an  oral  claim  to  the  manager  of  the  works,  but  made  no  claim  in 
writing,  the  verbal  claim  was  held  sufficient.  Id.  Where  a  workman,  whose 
injury  by  accident  occurred  in  January,  claimed  compensation  from  his  em- 
ployer in  May,  and  then  filed  a  request  for  arbitration,  which  was  beyond 
the  time  limit  of  the  Act  set  for  making  claim,  it  was  held  that  the  claim 
meant  in  the  Act  was  the  claim  to  the  employer,  made  here  in  May,  which 
was  the  real  starting  of  the  proceedings.  Powell  v.  Main  Colliery  Co.,  Ltd. 
(1900)  2  W.  C.  C.  29,  H.  L.,  and  2  W.  C.  C.  25,  C.  A.  (Act  of  1897).  Where  an 
injured  workman  gave  notice  and  made  claim,  and  received  full  wages  for 
five  weeks  during  his  incapacity,  and  his  wife  then  asked  the  employer  wheth- 
er he  would  compensate  her  and  her  children,  such  cannot  be  considered  as 
a  claim  for  compensation.  Johnson  v.  Wootton  (1911)  4  B.  W.  C.  C.  258,  C 
A.  Where  an  injured  workman  was  offered  compensation,  and  refused  it, 
consulting  a  lawyer  about  bringing  an  action,  and  afterward  changed  his  mind, 
but  made  no  claim,  the  offer  which  he  refused  cannot  be  considered  as  a  claim 
for  compensation  made  by  him.  Devons  v.  Anderson  &  Sons  (1911)  S.  C.  181, 
C.  A.  Where,  after  the  death  by  accident  of  a  workman,  the  counsel  of  his 
dependent  father  gave  notice  and  said  he  was  instructed  to  "intimate"  that 
the  father  would  hold  the  employers  liable  for  compensation,  such  notice  is 
not  a  claim,  but  merely  a  notice  of  the  accident,  and  evidence  of  intention  to 
make  a  claim.    Bennett  v.  Wordie  &  Co.  (1899)  3  F.  908. 


763  SETTLEMENT  OF  CONTROVERSIES  §  213 

ploye  makes  it  known  to  his  employer  that  he  is  claiming  com- 
pensation, is  sufficient  under  the  Kansas  Act.""  An  action  brought 
by  the  employe  for  damages  will  serve  the  purpose  of  the  require- 
ment of  this  Act  that  he  make  claim  for  compensation  within  three 
months,  where  he  amends  his  petition  and  asks  for  compensation 
under  the  Act.^^ 

A  claim  for  compensation  on  account  of  injury  sustained  by  an 
employe  in  the  course  of  employment,  which  results  in  permanent 
partial  disability  such  as  is  defined  in  the  schedule  contained  in  sec- 
tion 33  of  the  Ohio  Act,  does  not  abate  by  reason  of  the  death  of 
such  employe  from  causes  other  than  the  injury,  even  though  the 
amount  has  not  been  determined  prior  to  his  death.^^ 

§  213.     Necessity  of  claim — Waiver 

No  claim  or  demand  for  compensation  need  be  made  when  the 
adverse  party  denies  any  liability,  or  where  by  reason  of  his  acts 
and  attitude  it  would  be  unavailing,  if  made,^^  or  where  liability 
has  been  admitted.^*     Demand  is  not  a  condition  precedent  to  the 

90  (Laws  1913,  c.  216,  §  6)  G alley  v.  Peet  Bros.  Mfg.  Co.,  98  Kan.  53,  157  Pac. 
431. 

aiAckerson  v.  National  Zinc  Co.,  96  Kan.  781,  153  Pac.  530. 

92  Re  Wm,  F.  Patterson,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  157. 

9  3  Ackerson  v.  National  Zinc  Co.,  96  Kan.'  781,  153  Pac.  530.  The  general 
rule  is  that,  where  a  demand  would  have  been  unavailing,  if  made,  proof  of 
demand  and  refusal  is  not  essential.  Raper  v.  Harrison,  37  Kan.  243,  15  Pac. 
219;  C,  K.  &  W.  R.  Co.  v.  Com'rs  of  Chase  County,  49  Kan.  399,  30  Pac. 
456;  Chapin  v.  Jenkins,  50  Kan.  385,  31  Pac.  1084;  Barton  v.  Mulvane,  59 
Kan.  313,  52  Pac.  883. 

94  Plaintiff  was  injured  in  defendant's  mill,  and  a  doctor  attended  him 
before  he  was  removed  therefrom.  A  few  days  thereafter  he  called  up  the 
mill,  and  told  the  timekeeper  he  wanted  a  settlement,  and  wanted  a  doctor 
sent  out,  and  was  referred  to  defendant's  main  office.  On  calling  there  he 
was  referred  to  defendant's  attorneys,  and  in  a  day  or  two  a  doctor  was  sent 
out.  A  little  later  he  went  with  counsel  to  see  defendant's  attorneys  about  a 
settlement,  which  was  discussed,  but  none  was  made.  Shortly  thereafter  the 
action  was  brought,  which  resulted  in  a  lump  sum  judgment.     The  answer 


§  213  workmen's  compensation  7G4r 

power  of  the  court  to  entertain  proceedings  for  compensation  under 
the  Minnesota  Act.**^  The  holder  of  a  claim  against  an  estate  for 
disability  compensation  under  the  California  Act  can  maintain  a 
proceeding  before  the  Commission  without  first  presenting  claim 
to  the  executor  or  executrix,  as  required  before  an  action  is  brought 
in  a  court  of  justice.''^ 

While  the  general  statutory  requirement  as  to  the  presentation  of 
claim  against  a  city  applies  to  demands  of  injured  employes  under 
the  Kansas  Act/''  compensation  may  be  recovered  in  that  state  in 
an  action  against  a  city  of  the  second  class  on  a  claim  not  presented 
as  required  by  the  general  statutes.^ ^  Provisions  of  city  charters 
regulating  the  filing  of  claims  against  the  city  have  no  effect  in 
compensation  cases  where  the  matter  is  covered  by  the  Act.''^    That 

admitted  an  injury  and  liability  for  compensation  beginning  at  the  end  oi 
the  second  week  of  the  disability,  and  averred  readiness  to  pay  compensation, 
and  that  the  plaintiff  had  been  notified  thereof  and  refused  to  accept.  It  was 
held  that  the  claim,  required  by  section  6,  c.  216,  of  the  Laws  of  1913,  to  be  made 
within  three  months  after  the  accid^'nt,  was  rendered  unnecessary.  Halver- 
hout  V.  S.  W.  Milling  Co.,  97  Kan.  484,  155  Pac.  91G. 

The  carrying  on  of  negotiations  with  applicant  for  the  settlement  of  hig 
claim  was  a  waiver  of  the  right  to  object  that  claim  was  not  made  within  the 
statutory  period.  Damps  v.  Michigan  Central  Railroad  Co.,  Mich.  Wk.  Comp. 
Cases  (1916),  25. 

Where  employers  paid  an  injured  workman  half  wages  for  some  time,  and 
tried  to  obtain  an  agreement  permitting  them  to  pay  a  lump  sura  in  full  com- 
pensation, but  failed,  they  were  estopped  by  admitting  their  liability  from 
pleading  lapse  of  time  as  a  defense.  Wright  v.  Bagnall  &  Sons,  Ltd.  (1900) 
2  W.  C.  C.  36,  C.  A.  (Act  of  1S97).  Where  the  employers,  in  their  answer,  al- 
leged that  they  had  paid  compensation  amounting  to  £2,  and  that  that  was  the 
extent  of  their  liability,  such  allegation  is  evidence  that  the  workman  had 
made  a  claim.    Lowe  v.  Myers  &  Son  (1906)  8  W.  C.  C.  22,  C.  A. 

9  5  state  ex  rel.  Diamond  Drilling  Co.  v.  District  Court,  129  Minn.  423,  152 

N.  W.  838. 

»6  Waltzer  v.  Martinez,  2  Cal.  I.  A.  C.  Dec.  951. 

97  Knoll  V.  City  of  Salina,  98  Kan.  428,  157  Pac.  1167. 

9  8  Id. 

9  9  The  provisions  of  the  charter  of  the  city  of  Detroit  relative  to  filing 
claims  against  the  city  are  superseded  by  the  Workmen's  Compensation  Act. 


765  'settlement  of  controversies  §  214 

the  workman  fails  to  make  a  written  demand  for  compensation 
within  three  months  after  the  accident  does  not  preclude  recovery 
where  an  oral  demand  is  made  within  that  time.^ 

§  214.     Time  for  presentation — Limitations 

The  claim  must  be  properly  filed  within  the  time  prescribed,^ 
unless  the  case  comes  within  a  statutory  exception  by  reason  of  ex- 

wMch  is  especially  made  applicable  to  every  city  within  the  state.  Marshall 
V.  City  of  Detroit,  Mich.  Wk.  Comp.  Cases  (1916),  57. 

1  Knoll  V.  City  of  Salina,  supra. 

2  Petition  must  be  filed  with  the  clerk,  not  merely  with  the  judge.  Hen- 
drickson  v.  Public  Service  Ry.  Co.,  87  N.  J.  Law,  366,  94  Atl.  402. 

The  Illinois  Act  requires  that'  the  claim  be  made  within  six  months  after 
the  accident.  Victor  Chemical  Works  v.  Indus.  Board  of  111.  (1916)  274  111.  11, 
113  N.  E.  173.  The  claim  papers  should  be  filed  within  the  time  specified  in 
rules  4  and  7  of  the  Rules  of  Procedure.  In  re  Harley  L.  Kelly,  vol.  1,  No.  7, 
Bui.  Ohio  Indus.  Com.  p.  141. 

When  it  appears  from  the  application  and  answer  that  more  than  eight 
months  have  elapsed  between  the  accident  and  the  filing  of  the  application, 
the  cause  will  be  dismissed.  Fox  v.  Union  Oil  Co.  of  Cal.,  2  Cal.  I.  A.  C.  Dec. 
414.  Where  from  the  application  itself  and  statements  of  the  applicant,  cor- 
roborated by  the  answer,  it  appeared  that  6%  months  had  elapsed  since  the 
date  of  the  accident,  the  action  was  dismissed,  v/ithout  a  hearing  to  take  tes- 
timony, for  want  of  jurisdiction.  Calef  v.  Union  Oil  Co.  of  Cal.,  2  Cal.  I.  A. 
C.  Dec.  488.  Where  the  applicant  sustained  an  accidental  injury  to  his  left 
eye,  and  compensation  was  paid  for  several  weeks  thereafter  until  the  appli- 
cant returned  to  work,  both  parties  then  believing  in  good  faith  that  the  dis- 
ability caused  by  the  accident  had  terminated,  and  more  than  six  months  aft- 
er the  last  payment  of  compensation  the  condition  of  the  eye  again  became 
serious,  due  to  the  formation  of  a  cataract,  caused  by  the  accident,  and  in- 
volving a  probable  loss  of  sight  of  the  eye,  and,  upon  an  application  for  com- 
pensation being  filed,  the  defendant  raises  as  a  defense  that  the  si.x  months 
period  within  which  suit  must  be  brought  has  elapsed,  such  defense  is  valid, 
and  the  applicant  is  not  entitled  to  compensation.  Stoll  v.  Ocean  Shore  Rail- 
road Co.,  2  Cal.  I.  A.  C.  Dec.  81. 

Wliere  the  accident  causing  the  injury  occurred  at  11:30  in  the  morning, 
and  the  claim  for  compensation  was  made  at  5:30  in  the  afternoon  of  the 
last  day  of  the  period  of  six  months  immediately  following,  it  was  held  to 
be  within  the  statutory  requirement.  Peggie  v.  Wemyss  Coal  Co.,  Ltd.  (1910) 
S.  C.  93,  Ct.  of  Sess. 


§  214     *  workmen's  compensation  766 

cusable  mistake  or  other  reasonable  cause. ^  Ignorance  of  the  re- 
quirements of  the  statute  is  not  an  excusable  mistake.*  Limitation 
provisions  have  been  held  not  to  apply  to  accidental  injuries  re- 
ceived before  their  passage.^  A  provision  that  "proceedings"  must 
be  begun  within  six  months  contemplates  the  filing  of  a  written 
claim,  and  letters  asking  for  information  as  to  the  rights  of  an  in- 
jured workman  are  not  sufficient  to  institute  "proceedings."  ^  It 
has  been  held  error  to  find  that  delay  in  obtaining  the  necessary 
authorization  from  a  workman's  widow  residing  in  Italy  was  such 
reasonable  cause  as  to  make  the  case  an  exception  to  the  rule  that 
the  claim  must  be  filed  within  six  months  after  injury,  where 
there  is  no  evidence  to  support  such  finding.''  As  a  rule,  any  pay- 
ment of  compensation  operates  to  extend  the  time,®  unless  it  be  a 

3  In  re  McLean,  223  Mass.  342,  111  N.  E.  783. 

Reasonahle  cause. — Where  the  injury  complained  of,  the  loss  of  an  eye,  did 
not  result  until  several  months  after  the  accident,  the  right  to  compensation 
^yas  not  barred  by  failure  to  make  claim  within  the  time  after  the  accident 
set  in  the  statutory  limitation.  Kalucki  v.  American  Car  &  Foundry  Co., 
Mich.  Wk.  Comp.  Cases  (1916),  390.  The  mere  fact  that  an  employer  paid  an 
injured  workman  half  wages  is  not  of  itself  a  reasonable  cause  for  his  not 
making  claim  until  after  the  period  of  limitation  prescribed  by  the  statute 
has  expired,  although  it  is  evidence  of  such  cause.  Lynch  v.  Lansdowne  (1914) 
48  Ir.  L.  T.  90,  C.  A. 

4  In  re  McLean,  223  Mass.  342,  111  N.  E.  783. 

5  Birmingham  v.  Lehigh  &  Wilkes-Barre  Coal  Co.  (N.  J.)  95  Atl.  242,  A 
claim  for  compensation  under  the  Workmen's  Compensation  Act  of  1911  (P. 
L.  p.  134)  held  not  barred  by  the  amendment  of  April  1,  1913  (P.  L.  p.  314,  §  8), 
where  the  accident  occurred  before  the  amendment,  and  even  though  the  lim- 
itation, as  fixed  thereby,  had  expired  when  the  petition  was  filed.  Baur  v. 
Court  of  Common  Pleas,  88  N.  J.  Law,  128,  95  Atl.  627. 

6  Johnson  v.  Engstrum  Co.,  2  Cal.  I.  A.  C.  Dec.  788. 

7  In  re  Fierro's  Case,  223  Mass.  378,  111  N.  E.  957, 

8  Where  wages  are  paid  in  full  In  lieu  of  compensation,  the  limitation  of 
time  within  which  to  commence  a  proceeding  runs  from  the  last  payment  of 
such  wages.    Turner  v.  City  of  Santa  Cruz,  2  Cal.  I.  A.  C.  Dec.  991. 

Where  the  injured  employg  fails  to  file  his  application  for  eight  months, 
but  during  seven  months  of  disability  and  to  the  end  of  his  term  of  office,  dur- 
ing which  time  he  does  little  or  no  work,  the  employing  municipality  pays 


767  SETTLEMENT  OF  CONTROVERSIES  §  214 

mere  payment  of  medical  expenses/  but  does  not  prevent  limita- 
tions from  running  from  the  date  of  the  payment.^** 

Where  an  employe  is  injured,  and  fails  for  six  months  to  receive 
or  claim  compensation  or  claim  the  reasonable  cost  of  his  medical 
expenses  from  the  employer  under  the  California  Act,  and  subse- 
quently dies  within  a  year  from  the  date  of  his  accident,  the  de- 
pendents of  the  deceased  employe  are  barred  by  the  statute  of  lim- 

him  his  salary  regularly,  such  payment  is  compensation,  and  extends  time  for 
beginning  of  the  operation  of  the  statute  of  limitations.  Acrey  v.  City  of  Holt- 
ville,  2  Cal,  I.  A.  C.  Dec.  587.  Where  applicant  sustained  a  disability  enti- 
tling him  to  compensation  for  a  period  of  53  weeks,  and  had  received  from  his 
employer  compensation  for  29  weeks,  such  payments  extended  the  time  of  op- 
eration of  the  statute  of  limitations,  and  the  6  months  did  not  begin  to  run 
until  compensation  was  discontinued,  although  the  filing  of  the  claim  was 
more  than  6  months  after  the  date  of  the  accident.  Higley  v.  Belcher,  2  Cal. 
I.  A.  C.  Dec.  839. 

Where  an  insurance  carrier  has  not  been  substituted  for  the  employer,  a 
proceeding  against  the  employer  is  not  barred  if  the  last  payment  on  account 
of  compensation  was  made  by  the  insurance  carrier  within  6  months  before 
commencing  the  proceeding.  Frandsen  v.  J.  Llewellyn  Co.,  3  Cal.  I.  A.  C.  Dec. 
23. 

9  Where  more  than  6  months  have  elapsed  from  date  of  accident  to  filing 
of  claim,  but  a  sum  of  money  has  been  paid  by  the  employer  to  the  injured 
employe  for  medical  expense  incurred,  the  payment  of  medical  expense  is  not 
payment  of  disability  indemnity  within  the  meaning  of  section  16  (c)  of  the 
Act,  and  does  not  extend  the  running  of  the  statute.  Johnson  v.  Engstrum 
Co.,  2  Cal.  I.  A.  C.  Dec.  788. 

10  Where  an  injured  employ^  was  paid  compensation  from  August  Gth, 
the  day  of  the  accident,  to  December  1st,  no  payment  being  made  thereafter, 
and  on  June  11th  of  the  next  year  a  claim  was  filed  with  the  Commission, 
it  was  held  that,  as  6  months  had  elapsed  since  the  last  day  of  payment,  the 
claim  was  barred  by  section  16  of  the  Act.  Baumgartner  v.  New  Method 
Laundry  Co.,  2  Cal.  I.  A.  C.  Dec.  639.  Where  3  months  after  the  accident  the 
sum  of  $540  was  paid  to  the  employ^,  and  accepted  by  him  as  a  full  settle- 
ment, and  10  months  after  the  accident  he  filed  a  claim  for  compensation  with 
the  Commission,  and  the  defendant  thereupon  relied  upon  the  defense  of  the 
statute  of  limitations,  since  this  sum  paid  as  settlement,  but  unapproved  by  the 
Commission,  if  paid  in  weekly  indemnity,  would  compensate  the  employ^  for 
disability  up  to  a  date  within  6  months  of  the  filing  of  his  claim,  the  claim  is 
therefore  not  barred  by  the  Act.  Wilson  v.  Red  River  Lumber  Co.,  2  Cal.  I. 
A.  C.  Dec.  807. 


§  215  workmen's  compensation  768 

itations  provided  in  the  Act  from  claiming  the  compensation  due 
the  deceased  during  his  lifetime,  or  the  cost  of  medical  treatment 
furnished  him/^  but  may  file  a  claim  for  a  death  benefit,  or  for 
the  payment  of  funeral  expenses  if  dependency  be  not  established, 
within  one  year  from  the  date  of  death.  The  fact  that  no  claim 
is  made  by  the  employe  prior  to  his  death  does  not  bar  the  depend- 
ents from  claiming  a  death  benefit  if  claim  be  made  within  a  year 
from  the  death, ^^  It  was  not  the  intention  of  the  lawmakers,  in 
enacting  the  provision  of  this  Act  which  authorizes  the  Industrial 
Accident  Commission  to  rescind,  alter,  or  amend  any  order  or 
award,  to  open  the  statute  of  limitations  and  to  extend  it  beyond 
the  period  of  six  months  to  enable  a  claimant  to  present  an  entirely 
new  case  based  on  the  alleged  result  of  an  injury  which  had  never 
before  been  called  to  the  attention  of  the  commissioners.^^ 

§  215.     Federal  Act 

The  federal  Act  of  1908,  continued  in  force  as  to  injuries  prior 
to  the  Act  of  1916,  provides  that  in  case  of  death  the  persons 
entitled  to  compensation  or  their  legal  representatives  shall,  with- 
in ninety  days  after  such  death,  file  an  affidavit  setting  forth  their 
relationship  to  the  deceased  and  the  ground  of  their  claim,  which 
affidavit  shall  be  accompanied  by  the  certificate  of  the  attending 
physician  setting  forth  the  fact  and  cause  of  death,  or  the  non- 
production  of  the  certificate  shall  be  satisfactorily  accounted  for. 
The  requirement  that  an  affidavit  be  filed  within  ninety  days  after 
death  is  directory,  and  a  failure  to  do  so  within  that  time  may  be 
waived  by  the  Secretary  in  cases  where  the  facts  appear  to  justify 
such  waiver.^*     It  is  the  date  of  the  delivery  to  the  official  su- 

11  Stephens  v.  Clark,  2  Cal.  I.  A.  C.  Dec.  135. 

12  Id. 

13  fWk.  Comp.  Act,  §§  16,  25  [c],  25  [d],  81,  82)  Ehrhart  v.  Indus.  Ace.  Com. 
of  Cal.  (Cal.  1916)  158  Pac.  193. 

14  In  re  Gray,  Jr.,  Op.  Sol.  Dept.  of  L.  (1915)  648,  overruling  In  re  Goodley, 
Op.  Sol.  Dept.  of  L.  (1915)  619. 


769  .     SETTLEMENT  OF  CONTROVERSIES  §  215 

perior,  and  not  the  date  of  the  execution  of  the  affidavit  of  claim, 
which  determines  whether  the  affidavit  of  claim  is  filed  within 
ninety  days.^^  Delivery  to  the  deceased  employe's  official  superior, 
in  accordance  with  regulations  of  the  Secretary  designating  such 
official  superior  to  receive  the  affidavit,  is  a  filing  with  the  secre- 
tary within  the  meaning  of  the  Act;^"  but  an  affidavit  deposited 
in  the  mail  within  ninety  days,  addressed  to  the  deceased's  official 
superior,  but  not  received  by  him  until  after  the  expiration  of  the 
ninety-day  period,  is  not  a  filing.^''  A  filing  by  any  one  or  more  of 
the  beneficiaries  named  in  section  2  and  referred  to  in  section  4  is 
sufficient  to  protect  the  rights  of  a  minor  child. ^^  Where  an  em- 
ploye leaves  no  parent  or  widow,  but  leaves  a  child,  and  the  acting 
Spanish  consul  files  the  affidavit  of  claim  on  behalf  of  the  child, 
such  acting  consul  may  be  regarded  as  acting  in  loco  parentis,  and 
his  affidavit  as  the  affidavit  of  the  child. ^'^  An  affidavit  filed  with 
the  American  consul  at  Madrid,  to  whom  the  proper  blanks  had 
been  sent,  and  through  whom  they  were  to  be  returned  when 
filled  out  and  executed,  has  been  held  to  have  been  filed  with  the 
Secretary  of  Commerce  and  Labor.^''  Neither  a  verbal  notice  of 
claim  by  the  royal  vice  consul  of  Italy  to  the  superior  officer  of  an 
Italian  subject,  killed  while  in  the  employ  of  the  United  States, 
within  ninety  days  after  death,  nor  a  telegraphic  notice  by  such 
consul  sent  to  the  Secretary  of  Commerce  and  Labor  ninety-two 
days  after  the  death,  is  a  compliance  with  the  Act.^^  If  a  bene- 
ficiary in  case  of  death,  in  person  or  by  agent,  files  a  claim  for 
compensation,  or  what  is  equivalent  to  a  claim,  within  the  time 

15  In  re  Graham,  Op.  Sol.  Dept.  of  L.  (1915)  629. 

16  In  re  Nurse,  Op.  Sol.  Dept.  of  L.  (1915)  626. 

17  In  re  Henry,  Op.  Sol.  Dept.  of  L.  (1915)  635. 

IS  In  re  Rodriguez,  Op.  Sol.  Dept.  of  L.  (1915)  551. 

18  In  re  Redondo,  Op.  Sol.  Dept.  of  L.  (1915)  563. 

20  In  re  Melchor,  Op.  Sol.  Dept.  of  L.  (1915)  646. 

21  In  re  Badolato,  Op.  Sol.  Dept.  of  L.  (1915)  630. 

HON.COMP. — i9 


§  215  workmen's  compensation  770 

prescribed,  and  an  "affidavit"  in  the  technical  sense  is  not  filed  until 
ninety  days  have  expired,  ov^ing  to  the  delay  of  government  officers 
in  supplying  the  necessary  forms,  the  right  to  compensation  is  not 
barred.^-  Where  a  claimant  cannot  act  for  himself  within  the  time 
limited,  and  another,  in  his  name  and  behalf,  but  without  prior 
authority,  acts  for  him  and  files  a  claim  within  ninety  days,  a  rat- 
ification by  the  claimant  of  the  act  done  on  his  behalf,  though 
made  after  the  expiration  of  the  ninety  days,  relates  back  to  the 
time  of  the  act  done,  so  as  to  make  the  filing  effective  as  to  the 
prior  date.^^ 

The  federal  Act  of  1908,  also  provides  that  in  case  of  inca- 
pacity for  work  lasting  more  than  fifteen  days,  the  injured  party 
shall,  within  a  reasonable  period  after  the  expiration  of  such 
time,  file  an  affidavit  setting  forth  the  grounds  of  his  claim,  to  be 
accompanied  by  a  certificate  of  the  attending  physician  as  to  the 
cause  and  nature  of  the  injury  and  probable  duration  of  the  in- 
capacity, or  the  nonproduction  of  the  certificate  shall  be  satis- 
factorily accounted  for.  The  filing  of  this  affidavit  is  not  the  only 
basis  of  a  claim,  as  the  Secretary  may  find  a  claim  established  from 
other  sources.  Such  filing  is  therefore  not  mandatory,  but  direc- 
tory.^* Where  a  verbal  claim  for  compensation  was  promptly 
made,  but  an  affidavit  of  claim  was  not  filed  until  nearly  a  year 
after  the  injury,  owing  to  the  neglect  of  official  superiors  to  fur- 
nish necessary  forms,  the  delay  was  not  unreasonable.^^  The  fact 
that  no  physician  is  employed  satisfactorily  accounts  for  the  non- 
production  of  a  physician's  certificate.-"  Where  the  evidence  shows 
incapacity  for  more  than  fifteen   days,  the  attending  physician's 

2  2  In  re  Powers,  Op.  Sol.  Dept.  of  L.  (1915)  622. 

23  In  re  Callender,  Op.  Sol.  Dept.  of  L.  (1915)  637. 

24  In  re  Filler,  Op.  Sol.  Dept.  of  L.  (1915)  663. 

2  5  In  re  Sturgeon,  Op.  Sol.  Dept.  of  L.  (1915)  669. 
26  In  re  Wagner,  Op.  Sol.  Dept.  of  L.  (1915)  666. 


771  SETTLEMENT  OF  CONTROVERSIES  §  215 

certificate,  covering  only  the  thirteen  days  the  employe  was  under 
his  observation,  satisfies  the  law.^'^ 

The  affidavit  of  claim  may  be  executed  and  filed  for  the  claim- 
ant by  an  attorney  in  fact  duly  appointed  for  the  purpose.^  ^  It 
may  be  executed  before  any  person  authorized  to  administer  oaths 
generally,  and  the  authority  of  a  person  in  a  foreign  country  to 
administer  oaths  is  a  question  of  fact,  which  should  be  established 
by  satisfactory  evidence.^®  Such  general  authority  is  not  indispen- 
sable, if  specific  authority  to  administer  oaths  is  not  so  limited  as 
to  exclude  the  oath  in  question.^'' 

2  7  In  re  Kuehnle,  Op.  Sol.  Dept.  of  L   (1915)  665. 
2  8  In  re  Jiminez,  Op.  Sol,  Dept.  of  L.  (1915)  657. 

29  In  re  Gilfillen,  Op.  Sol.  Dept.  of  D.  (1915)  654. 

30  In  re  Grant,  Op.  Sol.  Dept.  of  L.  (1915)  660. 


§    21G  workmen's  COMPENSATION  H'2 

ARTICLE  V 

EVIDENCE 

Section 

216.  Admissibility. 

217.  Hearsay. 

218.  Declarations  of  workman. 

219.  Burden  of  proof  and  evidence  to  sustain  it— rresumption. 

220.  Report — Evidentiary  effect. 

221.  Medical  examination. 

222.  Federal  Act. 

§  216.     Admissibility 

The  Legislature  cannot  delegate  to  a  commission  the  power  to 
regulate  and  prescribe  the  nature  and  extent  of  proof.^^  While 
administrative  commissions  or  boards  are  not  held  to  the  same 
strict  rule  with  respect  to  rulings  on  the  admission  of  evidence  as 
courts  of  law,^2  evidence  admissible  in  courts  is  properly  received 
in  proceedings  before  these  tribunals,^^  and  the  ordinary  rules  as  to 

31  Workmen's  Compensation  Act,  §  75,  subd.  6,  purporting  to  give  the  Com- 
mission power  to  regulate  and  prescribe  the  nature  and  extent  of  the  proofs 
of  evidence,  is  an  attempted  delegation  of  power,  violative  of  Const,  art. 
22,  §  21.     Englebretson  v.  Indus.  Ace.  Com.,  170  Cal.  793,  151  Pac.  421. 

32  First  Nat.  Bank  v.  Indus.  Cora.,  161  Wis.  526,  154  N.  W.  817;  Chicago 
&  N.  W.  Ey.  Co.  v.  Railroad  Commission,  156  Wis.  47,  145  N.  W\  216,  974; 
Borguis  et  al.  v.  Falk  Co.,  147  Wis.  327,  133  N.  W.  209,  37  L.  R.  A.  (N.  S.) 
489.  The  Commission  is  not  confined  to  the  evidence  taken  on  the  hearing  in 
the  same  degree  as  courts  are  in  their  proceedings.  The  Compensation  Act 
contemplates  that  the  Commission  shall  get  all  the  facts  and  information 
available  and  render  its  award  accordingly.  Winters  v.  Mellen  Lumber  Co., 
Bui.  Wis.  Indus.  Com.  vol.  I,  p.  89. 

S3  In  re  Fierro's  Case,  223  Mass.  378,  111  N.  E.  957. 

Documentary  evidence.— Printed,  reports  of  the  United  States  Bureau  of 
Mines,  written  by  an  expert,  bearing  on  the  causes  and  effects  of  carbon 
monoxide  poisoning,  are  admissible,  though  read  in  evidence  by  another  wit- 
ness, the  expert  not  being  produced.  Markt  v.  National  Brewing  Co.,  2 
Cal.  I.  A.  C.  Dec.  881.  Permission  was  granted  a  witness,  without  objec- 
tion by  the  adverse  party,  to  send  in  a  written  statement  elaborating  his 
oral  testimony  given  on  the  stand,  wherein  he  set  forth  the  details  of  certain 


773  SETTLEMENT   OF   CONTROVERSIES  §   216 

order  of  proof  are  usually  followed.  Where  a  case  has  been  sub- 
mitted by  agreement  of  a  defendant  upon  the  testimony  previously 
taken,  he  will  not  be  granted  the  privilege  of  producing  further  tes- 
timony, which  could  have  been  produced  before.^*  A  memorandum 
relative  to  the  injury,  entered  by  the  foreman  of  the  department  in 
which  the  employe  worked,  is  admissible  in  evidence  as  an  admis- 
.sion  against  the  employer  that  the  injury  occurred  in  the  course 
of  employment,  where  it  was  the  foreman's  duty  to  make  such  en- 
tries."^ Conversation  over  the  telephone  is  competent  to  prove 
notice.^®  Evidence  as  to  the  manner  in  which  the  injury  was  re- 
ceived is  ordinarily  irrelevant,  and  should  be  excluded,  where  it 

occurrences  similar  to  the  alleged  occurrence  in  dispute.  Such  statement  was 
admissible  as  a  continuation  of  the  sworn  oral  testimony,  to  the  extent  that 
the  oral  testimony  was  admissible.  Id.  An  original  certified  power  of  attor- 
ney by  an  alien  dependent  may  be  accepted  as  evidence  in  proving  a  claim. 
(Wk.  Comp.  Act  Wash.  §  3)  Rulings  Wash.  Indus.  Ins.  Com.  1915,  p.  6. 

Testimony  of  a  deceased  witness,  taken  in  some  other  and  different  pro- 
ceeding than  the  one  in  which  the  same  is  sought  to  be  introduced,  is  not 
admissible.    Rediger  v.  Pekin  Wagon  Co.,  Bulletin  No.  1,  111.,  p.  146. 

Ex  parte  affidavits  and  depositions,  not  in  conformity  with  the  statute  or 
rules  of  court,  are  not  the  best  evidence,  and  are  not  admissible  to  establish 
any  fact  or  question  at  issue.  Rediger  v.  Pekin  Wagon  Co.,  Bulletin  No.  1, 
111.,  p.  146.  The  Industrial  Board  has  the  power  to  issue  a  dedimus  potes- 
tatem,  and  under  rule  17  has  the  right  to  permit-  the  evidence  so  taken  to  be 
read  on  the  trial  of  the  cause.  Cardinale  v.  Valencano,  Bulletin  No.  1,  111.,  p. 
114. 

Competency  of  witness. — It  is  not  sufficient  to  preclude  a  physician  from 
testifying  that  he  has  been  appointed  by  the  Board  to  make  an  examination 
and  report  his  findings,  unless  it  is  clearly  shown  he  is  biased  and  prejudic- 
ed.   Krisan  v.  American  Steel  Foundries,  Bulletin  No.  1,  111.,  p.  156. 

Expert  testimony. — Where  two  experts  called  in  by  the  Commission  agreed 
with  the  conclusion  of  the  physicians  who  had  treated  the  applicant,  the 
Commission  held  that  its  only  safe  ground  was  to  get  absolutely  impartial 
expert  evidence,  and  then  follow  it  so  far  as  it  coincided  with  reason  and 
judgment.  Derbeck  v,  Pfister  &  Vogel  Leather  Co.,  Bui.  Wis.  Indus.  Com. 
vol.  I,  p.  92. 

3  4  Witt  V.  Pacific  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  861. 

3  5  Fitzgerald  v.  Lozier  Motor  Co.,  187  Blich.  660,  154  N.  W.  07. 

3  0  Cutaria  v.  Swieberg,  Bulletin  No.  1,  111.,  153. 


§  217  workmen's  compensation  774 

will  tend  to  arouse  prejudice  against  the  employer,  as  where  it 
shows  ill  treatment  of  the  employe  by  the  employer's  foreman. ^^ 
Unsworn  opinion  evidence,  given  without  notice  to  the  employer 
or  insurer,  or  opportunity  to  interrogate  the  witness  or  make  ad- 
ditional proof,  should  not  be  considered.^®  While,  on  review  by 
the  courts  of  many  states,  the  finding  of  a  coroner  or  his  jury  is 
inadmissible  in  evidence  on  the  trial  of  an  issue  as  to  the  cause  of 
death,  the  rule  is  otherwise  in  Illinois,  and  in  that  state  the  inquest 
of  the  coroner  and  the  verdict  of  the  jury  are  competent  evidence.^® 
An  admission  by  an  employer  against  his  interest  should  be  given 
its  full  force,  the  same  as  in  an  action  at  law,  and  is  equally  good 
against  his  insurance  carrier.*** 

§  217.     Hearsay 

A  provision  authorizing  a  Commission  to  disregard  "technical 
rules"  does  not  usually  authorize  an  award  made  on  hearsay  evi- 
dence ;  the  rule  against  hearsay  evidence  being  more  than  a  mere 
artificial  technicality  of  law.*^     Many  considerations  preclude  the 

3T  Ruth  V.  Witlierspoon-Englar  Co.,  98  Kan.  179,  157  Pac.  403. 
3  3  Pacific  Coast  Casualty  Co.  v.  Pillsbury,  Indus.  Ace.  Com.,  171  Cal.  319, 
153  Pac.  24 ;  McCay  v.  Bruce,  2  Cal.  I.  A.  C.  Dec.  975. 

39  Armour  &  Co.  v.  Indus.  Board  of  111.  (1916)  273  111.  590,  113  N.  E.  138; 
Victor  Chemical  Works  v.  Indus.  Board  of  111.  (111.  191G)  274  111.  11,  113  N. 
E.  173. 

The  admissibility  of  such  evidence  has  been  declared  in  the  following  cases, 
vihich  include  actions  on  contract  of  life  insurance,  a  suit  to  set  aside  a  will, 
and  actions  arising  from  negligence:  United  States  Life  Ins.  Co.  v.  Vocke, 
129  111.  557,  22  N.  E.  467,  6  L.  R.  A.  65 ;  Pyle  v.  Pyle.  158  111.  289.  41  N.  E. 
999 ;  Stollery  v.  Cicero  &  Proviso  Street  Ry.  Co.,  243  111.  290,  90  N.  E.  709 ; 
Grand  Lodge  I.  O.  M.  A.  v.  Wieting,  168  111.  408,  48  N.  E.  59,  61  Am.  St. 
Rep.  123 ;  Foster  v.  Shepherd,  258  111.  164,  101  N.  E.  411,  45  L.  R.  A.  (N.  S.) 
167,  Ann.  Cas.  1914B,  572;  Deviiie  v.  Brunswick  Balke  Co.,  270  111.  504,  110 
N.  E.  780.  There  is  no  distinction  in  principle  between  these  cases  and  such 
as  arise  under  the  Workmen's  Compensation  Act.  Armour  &  Co.  v.  Indus. 
Board  of  111.  (1916)    supra. 

40  Moss  V.  Ames  Iron  Works,  The  Bulletin,  vol.  1,  No.  8,  p.  9. 

41  Englebretson  v.  Indus.  Ace.  Com.,  170  Cal.  793,  151  Pac.  421;  Reck  v. 
Whittlesberger,  181  Mich.  463,  148  N.  W.  247,  Ann.  Cas.  1916C,  771. 

An  award  based  on  hearsay  evidence  will  be  set  aside.     Englebretson  v. 


775  SETTLEMENT  OF  CONTROVERSIES  §  217 

admission  of  hearsay  evidence.  The  unreliability  of  a  relation  by 
one  person  of  statements  made  to  him  by  another  is  so  well  known 
that  it  has  become  customary  and  is  considered  necessary  for  courts, 
in  cases  where  oral  admissions  of  a  party  are  proved  against  him, 
to  instruct  the  jury  that  they  must  view  such  admissions  v/ith 
caution,  because  of  the  tendency  of  witnesses  to  make  perverted  or 
inaccurate  reports.  There  are  many  decisions  of  courts  of  the 
highest  standing  declaring  the  importance  and  substantial  character 
of  the  rule  against  hearsay  testimony.  It  has  been  said  that  the 
fact  "that  this  species  of  testimony  supposes  some  better  testimo- 
ny which  might  be  adduced  in  the  particular  case  is  not  the  sole 
ground  of  its  exclusion.  Its  intrinsic  weakness,  its  incompetency  to 
satisfy  the  mind  of  the  existence  of  the  fact,  and  the  frauds  which 
might  be  practiced  under  its  cover  combine  to  support  the  rule  that 
hearsay  evidence  is  totally  inadmissible.  *  *  *  'phe  danger  of 
admitting  hearsay  evidence  is  sufficient  to  admonish  courts  of  jus- 
tice against  lightly  yielding  to  the  introduction  of  fresh  exceptions 
to  an  old  and  well-established  rule,  the  value  of  which  is  felt  and 
acknowledged  by  all.  If  the  circumstance  that  the  eyewitnesses  of 
any  fact  be  dead  should  justify  the  introduction  of  testimony  to 
establish  that  fact  from  hearsay,  no  man  could  feel  safe  in  any 
property,  a  claim  to  which  might  be  supported  by  proof  so  easily 

Indus.  Ace.  Com.,  supra;  Employers'  Assur.  Corp.  v.  Indus.  Ace.  Com.,  170 
Cal.  800,  151  Pac.  424.  The  rule  against  the  admission  of  hearsay  evidonce 
as  proof  of  a  fact  is  more  than  a  mere  technical  rule  of  admission,  and  is  not 
to  be  considered  as  one  of  the  technical  rules  of  evidence  referred  to  in  sec- 
tion 77  of  the  Compensation  Act.  Englebretson  v.  Indus.  Ace.  Com.,  2  Cal. 
I.  A.  C.  Dec.  449.  The  Industrial  Accident  Commission  has  no  power  to  make 
an  award,  where  the  only  evidence  of  accidental  injury  consists  of  hearsay 
testimony,  notwithstanding  the  provision  of  section  77  of  the  Compensation 
Act  that  hearings  before  the  Commission  "shall  be  governed  by  this  Act  and 
by  the  rules  of  practice  and  procedure  adopted  by  the  Commission,  and  in 
the  conduct  thereof  neither  the  Commission  nor  any  member  thereof  nor  any 
referee  appointed  thereby  shall  be  bound  by  the  technical  rules  of  evidence," 
and  notwithstanding  the  provision  of  subdivision  6  of  section  75,  which  pur- 
ports to  give  to  the  Commission  the  power  "to  regulate  and  prescribe  the  na- 
ture and  extent  of  the  proofs  and  evidence."     Id. 


§  217  workmen's  compensation  776 

obtained."  *^  But,  under  the  provision  of  the  New  York  Act  that 
the  Commission  shall  not  be  bound  by  statutory  rules  of  evidence 
or  technical  rules  of  procedure,  the  Commission  is  authorized  to 
receive  and  consider,  not  only  hearsay  testimony,  but  any  kind  of 
evidence  that  may  throw  light  on  a  claim  pending  before  it.*^  In 
this  connection  it  should  be  noticed,  however,  that  though  the 
New  York  Commission  in  its  investigations  may  receive  hearsay 

42  Englebretson  v.  Indus.  Ace.  Com.,  170  Cal.  793,  151  Pac.  421,  quoting  Chief 
Justice  Marshall,  in  Queen  v.  Hepburn,  11  U.  S.  (7  Cranch)  296,  3  L.  Ed.  348, 
holding  that  the  reasons  for  excluding  hearsay  evidence  were  these:  "First, 
because  the  averment  of  fact  does  not  come  to  the  jury  sanctioned  by  the 
oath  of  the  party  on  whose  knowledge  it  is  supposed  to  rest;  and,  secondly, 
because  the  party,  upon  whose  interests  it  is  brought  to  bear,  has  no  oppor- 
tunity to  cross-examine  him  on  whose  supposed  knowledge  and  veracity  the 
truth  of  the  fact  depends" — citing  1  Greenleaf  on  Evidence  (16th  Ed.)  page 
183,  §  99a,  wherein  Mr.  Greenleaf  says:  "To  these  reasons  may  be  added 
considerations  of  public  interest  and  convenience  for  rejecting  hearsay  evi- 
dence. The  greatly  increased  expense  and  the  vexation  which  the  adverse 
party  must  incur  in  order  to  rebut  or  explain  it,  the  vast  consumption  of  pub- 
lic time  thereby  occasioned,  the  multiplication  of  collateral  issues  for  decision 
by  the  jury,  and  the  danger  of  losing  sight  of  the  main  question  and  of  tne 
justice  of  the  case  if  this  sort  of  proof  were  admitted,  are  considerations  of 
too  grave  a  character  to  be  overlooked  by  the  court  or  the  Legislature  in  de- 
termining the  question  of  changing  the  rule."  The  above  case  also  cites  2 
Wigmore  on  Evidence,  p.  1G97 ;  Woolsey  v.  Pethick  Bros.,  1  Butterworth,  411 ; 
Gilbey  v.  Great  Western  By.  Co.,  102  L.  T.  202,  3  Butterworth,  135 ;  Amys  v. 
Barton,  5  Butterworth,  117. 

43  (Laws  1914,  e.  41,  §  68)  Carroll  v.  Knickerbocker  Ice  Co.,  218  N.  Y.  435, 
113  N.  E.  507,  reversing  169  App.  Div.  450,  155  N.  Y.  Supp.  1;  Putnam  v. 
Murray,  The  Bulletin,  N.  Y.,  vol.  1,  No.  4,  p.  9. 

Commissioner  Lyon  said  in  Stadtmuller  v.  Travelers'  Insur.  Co.,  The  Bulle- 
tin, N.  Y.,  vol.  1,  No.  4,  p.  9,  that  "it  would  be  perfectly  proper  for  the  Com- 
mission, if  it  thought  the  weight  of  the  hearsay  evidence  efficient,  to  grant 
compensation  on  that  evidence  alone,  but  if  it  were  the  only  evidence  in  the 
case  I  should  personally  hesitate  very  seriously  before  doing  so.  I  do  not  un- 
derstand that  the  opinion  of  the  Appellate  Division  goes  any  farther  than  to 
make  it  possible  for  this  Commission,  in  carefully  weighing  evidence,  to  make 
a  finding  upon  hearsay  evidence  alone.  I  do  not  understand  that  the  Appel- 
late Division  has  in  any  way  intimated  that  this  Commission  should  mal-'c 
such  a  finding  on  such  evidence,  vmless  it  is  convinced  by  the  weight  of  IL 
evidence  of  its  truth. 


777  SETTLEAIENT   OP   CONTROVERSIES  §   218 

testimony,  the  probative  effect  of  such  evidence  is  unchanged,  and 
an  award  which  is  altogether  dependent  upon  such  testimony  can- 
not be  sustained,  where  there  is  substantial  evidence  to  the  con- 
trary.** Thus  hearsay  testimony  of  the  deceased  workman's  state- 
ments as  to  the  cause  of  the  accident,  made  at  a  time  when  he  was  in 
a  highly  nervous  state,  which  resulted  in  delirium  tremens,  causing 
death,  is  no  evidence  at  all,  where  there  is  substantial  legal  evidence 
that  no  such  accident  happened.*"* 

§  218.     Declarations  of  workman 

Statements  made  by  the  injured  workman  relative  to  his  bodily 
or  mental  feelings  may  be  admitted,  but  his  statements  relative  to 
the  cause  of  his  illness  should  be  excluded.*^  This  is  true  of  state- 
ments made  by  a  deceased  workman  to  a  fellow  servant  as  to  the 
cause  of  his  injury.*''  The  statement  of  a  workman,  made  imme- 
diately after  an  accident,  that  he  had  received  a  pin  prick  while 
cleaning  spittoons,  made  when  he  was  unconscious  of  the  tragical 
results  which  were  to  follow,  was  the  best  evidence  of  the  surround- 
ings and  circumstances  of  the  cause  of  his  fatal  malady.*^ 

44  Carroll  v.  Knickerbocker  Ice  Co.,  218  N.  Y.  435,  113  N.  E.  507,  reversing 
169  App.  Div.  450,  155  N.  Y.  Supp.  1. 

45  Id. 

46  Reck  V.  Whittlesberger,  181  Mich.  463,  148  N.  W.  247,  Ann.  Gas.  1916C, 
771 ;  Gilbey  v.  Great  Western  Ry.  Co.,  3  B.  W.  C.  C.  135.  There  was  no  error 
in  receiving  evidence  as  to  declarations  of  the  deceased  employ^.  Pigeon  v. 
Employers'  Liab.  Assur.  Corp.,  216  Mass.  51,  102  N.  E.  932,  Ann.  Cas.  1915A, 
737. 

4T  Reck  v.  Whittlesberger,  supra.  As  to  probative  effect  of  workman's  dec- 
larations, see  next  section. 

But  in  Allard  v.  N.  Y.,  N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec.  385, 
where  the  claimant's  statement  that  he  had  received  a  strain  resulting  in  an 
injury  to  his  hip,  and  had  called  the  attention  of  two  fellow  employes  to  the 
fact  was  unsupported,  and  the  two  workmen  denied  having  any  knowledge 
of  the  injury,  it  was  held  he  had  not  sustained  his  claim  by  a  preponderance 
of  evidence. 

4  8  Patch  V.  First  National  Bank  of  Milwaukee,  Kep.  Wis.  Indus.  Com,  1914- 
15,  p.  9. 


§  219  workmen's  compensation  778 

§  219.     Burden  of  proof  and  evidence  to  sustain  it — Presumption 

The  burden  of  proof  is  upon  an  applicant  to  establish  his  claim 
by  a  preponderance  of  credible  testimony.  This  burden  may  in 
some  cases  be  discharged  by  the  testimony  of  the  applicant  alone, 
but  such  testimony  must  convince  the  mind  that  he  has  made  his 
claim  in  good  faith,  and  is  entitled  thereto.*''  It  was  held  in  a  Mich- 
igan case,  however,  that  where  there  is  no  evidence  as  to  an  acci- 
dent arising  out  of  and  in  the^course  of  an  employment,  other  than 
statements  of  a  deceased  employe  in  the  absence  of  his  employer, 
an  award  cannot  be  sustained.^"  Proof  of  the  workman's  death  may 
be  made  by  circumstantial  evidence,  and  the  finding  of  the  body  is 

49  Denker  v.  Pacific  Stevedoring  &  Ballasting  Co.,  1  Cal.  I.  A.  C.  Dec.  14. 

Tlie  burden  of  proving  facts  necessary  to  make  out  a  case  rests  on  tlie  party 
petitioning  for  relief  under  the  Act  as  much  as  it  does  on  the  plaintiff  in  any 
proceeding  at  law.  Corral  v.  William  H.  Hamlyn  &  Son  (R.  I.)  94  Atl.  877. 
An  applicant  for  disability  caused  by  accidental  injury  must  prove  his  claim 
by  a  preponderance  of  the  testimony.  Eebello  v.  Marin  County  Milk  Produc- 
ers. 1  Cal.  I.  A.  C.  Dec.  87;  W.  R.  Eidoout  Co.  v.  Pillsbury  (Cal.)  159  Pac. 
435.  The  burden  of  proof  is  on  the  applicant  to  establish  by  competent  proof 
Che  fact  of  death.  Western  Grain  &  Sugar  Products  Co.  v.  Pillsbury  (Cal.) 
159  Pac.  423.  In  Stampick  v.  American  Steel  &  Wire  Co.,  1  Conn.  Comp.  Dec. 
474,  Commissioner  Beers  said  the  burden  of  proof  resting  upon  the  claimant 
is  "a  burden  of  proof  which  does  not  rest  on  any  technical  rule,  but  which 
is  inherent  in  that  principle  of  justice  which  determines  that  one  cannot  se- 
cure from  another  the  payment  of  money  without  showing  that  he  is  enti- 
tled to  it."  The  burden  of  proof  in  all  claims  for  compensation  rests  on  the 
claimant  to  furnish  convincing  proof  to  the  Board  as  to  every  jurisdictional 
fact,  or  to  furnish  proof  of  facts  from  which  such  jurisdictional  facts  may  be 
clearly  deduced.  In  re  Gertrude  Patterson,  vol.  1,  No.  7,  Bui.  Ohio  Indus. 
Com.  p.  33.  The  testimony  of  a  workman  that  the  loss  of  an  eye  had  impair- 
ed his  efficiency  as  a  workman,  because  he  could  not  gauge  distances  as  ac- 
curately as  before,  was  a  sufficient  basis  for  a  finding  that  there  was  a  sub- 
stantial permanent  impairment  of  his  earning  capacity.  Oliver  v.  Christopher, 
98  Kan.  6G0,  159  Pac.  397. 

5  0  Reck  V.  Whittlesberger,  181  Mich.  4G3,  148  N.  W.  247,  Ann.  Cas.  191CC, 
771.  This  rule  is  emphasized  to  the  extent  of  even  holding  admission  of 
such  evidence  reversible  error,  because  the  mind  of  the  trial  court  might  have 
been  "colored  by  his  admitting  statements  which  are  inadmissible  as  evi- 
dence."    Id. ;    Smith  v.  Hardman,  Ltd.,  G  B.  W.  C.  C.  719. 


779  SETTLEMENT  OP  CONTROVERSIES  §  219 

not  an  indispensable  requisite  to  a  conclusion  that  the  emplo3'e 
came  to  his  death  by  violence. ^^ 

A  prima  facie  case  is  made  when  it  is  shown  that  an  employe 
was  at  his  usual  place  of  employment,  at  the  usual  time  of  day  when 
he  was  expected  and  required  to  be  there,  and  an  injury  of  any 
character  is  shown. "^  Where  it  is  difficult  to  determine  where  the 
weight  of  testimony  lies  concerning  a  given  state  of  facts,  or  con- 
dition or  manner  in  which  an  accident  happened,  the  legal  pre- 
sumption favors  the  payment  of  compensation. ^^  In  other  words, 
if  the  evidence,  though  slight,  is  yet  sufficient  to  make  a  reasonable 
man  conclude  in  the  claimants'  favor  on  the  vital  points,  then  his 
case  is  proven.  But  the  rational  mind  must  not  be  left  in  such  un- 
certainty that  these  essential  elements  are  not  removed  from  the 
realm  of  fancy.^* 

The  burden  of  proof  in  respect  to  particular  matters,  and  the 
sufhciency  and  probative  effect  of  evidence  relative  to  such  mat- 
ters, is  considered  in  other  sections. ^^ 

The  presumptions  created  by  the  New  York  Act,  that  the  claim 
comes  within  the  law,  that  sufficient  notice  was  given,  and  that  the 
injury  was  not  caused  by  the  employe's  willful  intention  or  intox- 
ication, do  not  arise  until  an  accident  arising  out  of  and  in  the 

51  Wstern  Grain  &  Sugar  Products  Co.  v.  Pillsbury  (Cal.)  159  Pac.  423. 

52  Cerny  v.  Wood  Street  Mill  Co.,  Bulletin  No.  1,  111.,  p.  52. 

5  3  Isidora  v.  Rockford  Gas  Light  &  Coke  Co.,  Bulletin  No.  1,  111.,  p.  42. 

64  In  re  Sponatski,  220  Mass.  526,  lOS  N.  E.  466,  L.  R.  A.  1916A,  333 ;  Plumb 
V.  Cobden  Flour  Mills  Co.,  Ltd.,  [1914]  A.  C.  62 ;  Barnabas  v.  Busliam  Colliery 
Co.,  4  B.  W.  C.  C.  119,  H.  L. ;  Fleclier  v.  Owners  of  the  Ship  Dutchess,  [1911] 
A.  C.  671.  See  also  Childs  v.  American  Exp.  Co.,  197  Mass.  337,  84  N.  E. 
12S ;  Big\vood  v.  Boston  &  N.  St.  R.  Co.,  209  Mass.  345,  95  N.  E.  751,  35  L.  R. 
A.  (N.  S.)  113. 

In  Foley  v.  A.  T.  Demarest  &  Co.,  1  Conn.  Corap.  Dec.  661,  where  the  evi- 
dence to  show  that  the  workman  was  injured  while  in  the  employ  of  one  of 
the  defendant  companies  was  hardly  more  than  a  mere  guess,  it  was  uisuffi- 
cient  to  sustain  the  burden  of  proof  against  that  defendant. 

55  For  section  references,  consult  index. 


§  220  workmen's  compensation  780 

course  of  the  employment  of  the  claimant  by  the  defendant  has  been 
proven.^* 

§  220.     Report — Evidentiary  efTect 

The  report  of  the  accident  made  by  the  employer  as  required  by 
statute  is  competent  prima  facie  evidence  of  the  facts  stated  there- 
in, subject  to  be  explained  or  contradicted. ^'^  Where  the  report  is 
made  by  the  employer's  agent  authorized  to  make  same,  the  em- 
ployer is  bound  thereby.^^  A  repart  made  by  a  Commission  under 
statutory  authority  may  be  considered  by  it,  when  it  has  been  laid 
before  the  parties. ^^ 

§  221.     Medical  examination 

Submission  to  a  medical  examination  to  afford  opportunity  to 
procure  evidence,  is  ordinarily  required.^"    A  claim  that  the  injured 

5  6  (Wk.  Comp.  Act,  §  21)  Collins  v.  Brooklyn  Union  Gas  Co.,  171  App.  Div. 
3S1,  15G  N.  Y.  Supp.  959. 

5  7  First  Nat.  Bank  v.  Indus.  Com.,  161  Wis.  526,  154  N.  W.  847. 

A  report  of  the  employer  constituted  prima  facie  evidence  that  the  accident 
occurred  as  reported,  and  that  the  injury  arose  out  of  and  in  the  course  of  em- 
ployment. (Pub.  Acts  Ex.  Sess.  1912,  No.  10)  Reck  v.  Whittlesberger,  181  Mich. 
463,  148  N.  W.  247,  Ann.  Cas.  1916C,  771. 

5  8  The  Supreme  Court  of  Michigan  has  held  that  such  reports  are  admissi- 
ble. First  Nat.  Bank  v.  Indus.  Com.,  161  Wis.  526,  154  N.  W.  847;  Reck  v. 
Whittlesberger,  181  INIich.  463,  148  N.  W.  247,  249,  Ann.  Cas.  1916C,  771.  This 
conclusion  finds  support  in  Seaboard  Air  Line  Ry.  Co.  v.  Florida,  203  U.  S. 
261,  27  Sup.  Ct.  109,  51  L.  Ed.  175;  Chicago  &  N.  W.  Ry.  Co.  v.  Railroad 
Commission,  156  Wis.  47,  145  N.  W.  216,  974. 

59  A  report  made  by  the  Industrial  Commission  under  St.  1911,  §  2394 — 52, 
subd.  10,  authorizing  the  collection  and  publication  of  statistical  and  other 
information,  may  be  considered  by  the  Commission  as  evidence  when  it  has 
been  laid  before  the  parties.  International  Harvester  Co.  v.  Indus.  Com.,  157 
Wis.  167,  147  N.  W.  53,  Ann.  Cas.  1916B,  330. 

6  0  In  re  McLean,  223  Mass.  342,  111  N.  E.  783. 

The  evidence  showed  that  the  employ^  had  been  requested  by  the  Board 
to  report  at  the  office  of  an  impartial  physician  for  examination,  as  provided 
by  part  III,  §  8,  of  the  Act,  and  that  he  had  failed  to  do  so.     Other  evi- 


781  SETTLEMENT  OF  CONTROVERSIES  §  222 

employe  refused  to  submit  to  a  medical  examination  is  not  sub- 
stantiated, where  before  the  employer's  physician  arrived  the  em- 
ploye's counsel  announced  that  they  would  not  consent  to  an  ex- 
amination, but  no  demand  appears  to  have  been  made  after  the 
physician  arrived,  and  the  anticipatory  refusal  did  not  lead  the 
prosecutor  to  countermand  him;  he  afterwards  appearing  and  be- 
ing sworn  as  a  witness.®^ 

Where  within  a  few  weeks  from  the  decision  of  the  California 
Commission  an  operation  is  performed,  and  it  becomes  possible  that 
permanent  disabilit}^  may  be  lessened  considerably,  the  Commis- 
sion will  allow  a  further  examination  at  any  time  upon  the  request 
of  either  party  to  determine  the  extent  of  permanent  disability, 
whether  a  year  has  elapsed  or  not.**^  Where  the  opinions  of  emi- 
nent physicians  as  to  whether  the  applicant  had  varicose  veins,  and 
whether  his  disability  was  affected  thereby,  are  conflicting,  and  the 
parties  agree  to  rest  their  decision  on  the  report  of  a  medical  ref- 
eree, who  reports  that  there  had  never  been  varicose  veins,  such 
report  will  be  accepted  as  the  basis  of  an  award  in  favor  of  the  ap- 
plicant."^ 

§  222.     Federal  Act 

The  duty  of  claimants  under  the  original  federal  Act,  continued 
in  force  as  to  injuries  prior  to  the  Act  of  1916,  to  submit  to  medical 
examination  at  least  once  in  six  months,  is  mandatory  upon  them ; 
but  the  obligation  of  the  Secretaiy  to  provide  such  an  examination  is 
directory,  so  that  a  right  to  compensation  is  not  lost  by  the  latter's 

deuce  indicated  that  his  incapacity  for  work  had  ceased.  The  emploj'e  filed 
a  request  for  a  hearing  about  four  months  after  he  had  been  notified  to  report 
for  an  impartial  examination,  and  was  held  not  entitled  to  compensation. 
Diminico  v.  Fidelity  &  Casualty  Co.  of  N.  Y.,  2  Mass.  Wk.  Comp.  Cases,  328 
(decision  of  Com.  of  Arb.). 

61  Birmingham  v.  Lehigh  &  Wilkesbarre  Coal  Co.  (N.  J.  Sup.)  95  Atl.  242. 

62  Peterson  v.  Pellasco,  2  Cal.  I.  A.  C,  Dec.  199. 

63  O'Neal  V.  Palmer  &  McBrj'de,  2  Cal.  I.  A.  C.  Dec.  745. 


§  222  workmen's  compensation  782 

failure  to  act.®*  In  order  to  defeat  a  right  to  compensation  for 
refusal  to  submit  to  an  examination,  it  is  necessary  that  the  exami- 
nation shall  have  been  directed  by  the  Secretary,  that  it  be  made 
without  expense  to  the  employe,  and  that  the  employe  be  advised 
by  the  Secretary  that  such  examination  is  required.®^  If  the  Secre- 
tary so  directs,  an  examination  made  by  a  naval  surgeon  designated 
by  the  Secretary  of  the  Navy  to  examine  an  employe  to  determine 
his  right  to  continued  compensation  would  be  a  compliance  with  the 
Act.*'*'  The  requirement  as  to  examination  shows  that  the  Act 
contemplates  the  payment  of  compensation  be  not  authorized  for  a 
longer  period  than  six  months  at  a  time,  even  though  the  disability 
is  permanent  in  its  nature.®'''  The  examinations  should  be  paid  for 
by  the  government,  the  contingent  appropriation  for  the  depart- 
ment being  available  for  such  purpose.*'* 

6  4  In  re  Villa  franca,  Op.  Sol.  Dept.  of  L.  (1915)  762. 

6  5  In  re  Mayott,  Op.  Sol.  Dept.  of  L.  (1915)  765. 

6  6  In  re  Villanueva,  Op.  Sol.  Dept.  of  L.  (1915)  765. 

6  7  In  re  Haynes,  Op.  Sol.  Dept.  of  L.  (1915)  761. 

6  8  (Dec.  Comp.  of  Treas.)  Op.  Sol.  Dept.  of  L,  (1915)  781. 


783  SETTLEMENT  OF  CONTROVERSIES  §  223 

ARTICLE  VI 

PROCEEDINGS  BEFORE  SPECIAL  TRIBUNAL 

Section 

223.  In  general. 

224.  Jurisdiction. 

225.  Service  of  summons. 

226.  Parties. 

227.  Pleading  and  issues  under  California  Act. 

228.  Taking  and  reception  of  testimony. 

229.  California. 

230.  Hearing,  findings,  and  award. 

231.  California. 

232.  Review  by  special  tribunal. 

233.  Dismissal. 

234.  Reopening  of  case,  rehearing,  and  supplementary  proceedings. 

235.  California. 

236.  Proceedings  under  original  federal  Act. 

§  223.     In  general 

The  procedure  before  a  Commission  should  be  flexible  and  adapt- 
ed to  the  direct  accomplishment  of  the  aim  of  the  Acts,  with  as  little 
formality  or  hampering"  restriction  as  is  consistent  with  the  preser- 
vation of  the  real  rights  of  the  parties  and  the  doing  of  justice  ac- 
cording to  the  terms  of  the  Acts.°^  While  it  v/as  evidently  the  in- 
tent of  this  legislation  that,  by  concise  and  plain  summary  pro- 
ceedings, controversies  arising  under  the  Acts  should  be  prompt- 
ly adjusted,  under  a  simplified  procedure  unhampered  by  the 
more  technical  forms  and  intervening  steps  which  sometimes 
cumber  and  delay  regular  litigation,  the  elementary  and  funda- 
mental principles  of  a  judiciary  inquiry  should  be  observed.'^** 
Commissions  and  Boards  are  purely  creatures  of  statute,  endowed 

6  9  In  re  Hunnewell,  220  Mass.  351,  107  N.  E.  934. 

The  hearing  before  the  Commission  is  of  a  summary  character,  and  the 
Commission  is  not  bound  by  the  ordinary  rules  of  evidence  and  practice. 
Gardner  v.  Horseheads  Const.  Co.,  171  App.  Div.  60,  156  N.  Y.  Supp.  899. 

7  0  Reck  V.  Whittlesberger,  181  Mich.  463,  148  N.  W.  247,  Ann.  Cas.  1916C, 
771. 


§  223  workmen's  compensation  784 

with  varied  and  mixed  functions.  Primarily  they  are  administra- 
tive bodies,  created  to  carry  provisions  of  the  Acts  into  effect. 
Supplemental  to  this,  in  order  that  they  may  more  efficiently  ad- 
minister the  law,  they  are  vested  with  quasi  judicial  powers,  ple- 
nary within  the  limits  fixed  by  the  statute.  Along-  the  lines  marked 
out  by  the  Acts,  they  are  authorized  to  pass  upon  disagreement 
between  employers  and  claimants  in  regard  to  compensation  for  in- 
juries, and  to  that  end  make  and  adopt  rules  for  a  simple  and  reason- 
ably summary  procedure.  As  a  rule,  hearings  are  to  be  held  upon 
notice  to  parties  in  interest;  compulsory  process  for  attendance  of 
witnesses  and  power  to  administer  oaths  is  given ;  the  parties  in 
interest  are  entitled  to  notice,  to  be  heard,  and  to  submit  evidence; 
a  review,  findings,  a  decision,  and  an  award  of  compensation  are  pro- 
vided for;  though  in  the  final  test  resort  must  be  had  to  the  courts 
to  enforce  the  awards. '^^    The  rule  seems  to  be  that  Commissions 


71  This  legislation  is  remedial,  and  should  be  given  a  broad  interiiretation. 
All  controversies  arising  between  tbe  employ§  and  the  employer  and  insurer 
under  the  terms  of  the  acts  are  to  be  settled  in  accordance  with  the  procedure 
there  established.  This  follows  from  general  considerations  touching  the 
nature  of  the  legislation  and  the  aim  intended  to  be  accomplished  by  it.  In 
re  Panasuk,  217  Mass.  5S9,  105  N.  E.  368.  The  Arbitration  Committee  and 
the  Industrial  Accident  Board  are  given  authority  to  summon  witnesses, 
administer  oaths,  hold  hearings,  take  testimony,  examine  evidence,  make 
rulings  of  law  and  findings  of  fact,  and  render  decisions.  Their  decisions 
may  be  enforced  by  appropriate  proceedings  in  the  courts.  The  power  to  take 
testimony  and  make  rulings  of  law  which  are  subject  to  review  by  the  judi- 
cial department  of  the  government  goes  far  to  indicate  that  in  performing 
those  functions  they  are  to  be  guided  and  controlled  by  the  same  general 
principles  which  would  govern  judicial  officers  in  discharging  the  same  duties. 
Pigeon  V.  Employers'  Liab.  Assur.  Corp.,  216  Mass.  51,  102  N.  E.  932,  Ann.  Cas. 
1915A,  737. 

The  Arbitration  Committee  and  the  Industrial  Accident  Board  had  juris- 
diction to  consider  whether  the  amount  paid  for  medical  attendance  by  the 
injured  employe  during  the  first  two  weeks  after  his  injury  could  be  recovered. 
(St.  1911,  c.  751,  pt.  2,  §§  1-5)  In  re  Panasuk,  supra.  Where  the  employe  made 
no  claim  under  the  Act,  the  action  of  the  insurer  of  her  employer  in  notifying 
the  Industrial  Accident  Board  of  the  accident  and  the  formation  of  a  Com- 
mittee of  Arbitration  which  made  an  award  in  favor  of  the  employ^  was 


785  SETTLEMENT  OF  CONTROVERSIES  §  223 

and  Boards  are  not  courts,''^  and  that  their  members  are  not  judicial 
officers,  within  the  strict  meaning-  of  these  terms. '^^  It  has  been 
held  in  Massachusetts,  however,  that  the  word  "court"  is  used  with 
a  broader  significance  than  including  simply  judicial  officers;  that 
it  may  be  given  a  signification  liberal  enough  to  include  the  Com- 
mittee on  Arbitration  and  the  Industrial  Accident  Board  as  con- 
stituted by  the  Act,  and  should  be  given  such  construction ;  ^^^  and 
the  California  Supreme  Court  has  stated  that  "the  Industrial  Acci- 
dent Commission  exercises  judicial  functions ;  it  sits  as  a  court 
to  try  matters  pertinent  to  issues  within  its  jurisdiction."  '^^ 
The  claimant  before  the  Wisconsin  Industrial  Accident  Board 
is  not  a  suitor  in  any  court  within  a  provision  of  the  Constitu- 
tion of  that  state  that  a  suitor  in  any  court  may  prosecute  or 
defend  either  in  person  or  by  attorney  or  agent.'^*'    The  Wisconsin 

warranted.  (St.  1911,  pt.  3,  §  5,  as  amended  by  St.  1912,  c.  571,  §  10)  Young 
V.  Duncan,  218  Mass.  316,  106  N.  E.  1;   Burt  v.  Brigham,  117  Mass.  307. 

72  The  Compensation  Board  provided  for  by  the  Act  of  1916  is  not  a  "court" 
within  Const.  §  135,  prohibiting  the  establishment  of  courts  not  provided  for 
by  the  Constitution.  Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648.  The 
Industrial  Accident  Board  is  a  ministerial  and  administrative  body,  with 
incidental  quasi  judicial  powers,  exercised  by  consent  of  those  electing  to  be 
governed  by  the  Act,  not  vested  with  powers  or  duties  in  violation  of  consti- 
tutional limitations.  Mackin  v.  Detroit-Timkin  Axle  Co.,  ''87  Mich.  8,  153  N. 
W/.  49.  The  Industrial  Commission  is  merely  an  administrative  body,  and  not 
a  court.  Menominee  Bay  Shore  Lumber  Co.  v.  Indus.  Com.,  162  Wis.  344,  156 
N.  W.  151.  The  Commission  is  not  a  court;  its  hearings  are  inquiries,  not 
trials.    McDonald  v.  Globe  Laundry  Co.,  2  Cal,  I.  A.  C.  Dec.  217. 

T3The  members  of  the  Industrial  Commission  are  not  "judicial  officers" 
within  the  Constitution.  Pigeon  v.  Employers'  Liab.  Assur.  Corp.,  216  Mass. 
51,  102  N.  E.  932,  Ann.  Cas.  1915A,  737. 

■     74  1(1. 

75  Smith  V.  Indus.  Ace.  Com.,  26  Cal.  App.  560,  147  Pac.  600.  This  case 
is  supported  by  Corea  v.  Higuera,  153  Cal.  451,  95  Pac.  882,  17  L.  R.  A.  (N. 
S.)  1018;  People  v.  McCue,  150  Cal.  195,  88  Pac.  899.  The  Industrial  Ac- 
cident Commission,  in  awarding  compensation,  is  a  judicial  body  exercising 
judicial  functions.  "Western  Metal  Supply  Co.  v.  Pillsbury  (Cal.)  156  Pac. 
491 ;   Carstens  v.  Pillsbury  (Cal.  1916)  158  Pac.  218. 

7  8  international  Harvester  Co.  v.  Indus.  Com.,  157  Wis.  107,  147  N.  W.  53, 
Ann,  Cas.  1916B,  330. 

HoN.CoMP. — 50 


§  223  workmen's  compensation  786 

Act  recognizes  the  right  of  a  claimant  to  select  and  employ  his  own 
attorney,  subject  to  the  limitation  that  the  fee  to  be  paid  must  be 
approved  by  the  Board. '^^  The  Industrial  Commission  of  Ohio 
acts  as  the  state  Liability  Board  of  Awards  in  matters  pertaining 
to  its  administration  of  the  Workmen's  Compensation  Fund/^ 

Members  of  the  Compensation  Board  provided  for  by  the  Ken- 
tucky Act  of  1916  are  arbitrators  within  Constitution,  §  250,  author- 
izing submission  of  controversies  to  arbitrators  selected  by  the 
parties,  and  the  acceptance  of  the  Act  constitutes  a  consent  that  the 
Board  may  act  as  arbitrators  in  determining  differences  between 
employer  and  employe.'^^ 

§  224.     Jurisdiction 

The  California  Commission  has  jurisdiction  to  determine  all  ques- 
tions of  liability  arising  under  the  Act  of  that  state,  including  the 
power  to  examine  and  construe  an  insurance  policy  protecting  the 
employer  against  liability  for  injuries  to  his  employes,  should  exam- 
ination be  necessary  in  determining  the  liability  imposed  by  the  Act, 
either  upon  the  employer  or  upon  the  insurance  carrier;®"  but  it 
cannot  obtain  jurisdiction  over  a  controversy  where  the  employer 
or  insurance  carrier  applies  for  the  adjustment  of  a  controversy, 
unless  the  injured  employe  consents  thereto,  since  otherwise  the 
employe  would  be  deprived  of  his  right  of  election  to  sue  for  dam- 
ages in  the  courts  upon  the  ground  of  personal  gross  negligence  of 
the  employer.®^     Thus,  where  the  only  issue  presented  arises  be- 

77  Id. 

7  8  "For  convenience  the  Board  in  charge  of  the  administration  of  the  fund 
will  be  referred  to  in  this  opinion  as  the  Board  of  Awards,  rather  than  as 
the  Industrial  Commission  of  Ohio,  for  the  Commission,  in  matters  pertain- 
ing to  its  administration  of  the  Workmen's  Compensation  Fund,  acts  as  the 
State  Liability  Board  of  Awards."  State  v.  Indus.  Com.,  92  Ohio  St.  434,  111 
N.  E.  299. 

T9  Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648. 

8  0  Walker  v.  Santa  Clara  Oil  &  Development  Co.,  2  Cal.  I.  A.  C.  Dec.  1. 
81  State  Comp.  Insur.  Fund  v.  Lemon,  2  Cal.  I.  A.  C.  Dec.  507. 


787  SETTLEMENT  OF  CONTROVERSIES  §  224 

tween  the  insurance  carrier  and  the  physician  secured  by  the  em- 
ployer to  treat  an  injured  employe,  as  to  the  proper  charge  for  the 
services  of  such  physician,  the  Commission  has  no  jurisdiction  to 
hear  the  application.  To  give  the  Commission  over  the  subject- 
matter  of  the  controversy,  there  must  be  a  proceeding  betAveen  the 
employer  or  his  insurance  carrier  on  one  side,  and  the  injured  em- 
ploye, his  dependents,  the  physician  or  attorney  employed  by  him, 
or  some  person  having  a  claim  or  lien  upon  amounts  due  such  in- 
jured employe  as  compensation  on  the  other  side.  Where  the  issue 
is  between  the  insurer  and  its  insured,  or  the  physician  employed 
by  the  insured  alone,  no  question  of  compensation  is  raised,  but 
only  a  question  of  private  contract  or  insurance  law,  which  is  triable 
in  civil  courts.  The  Commission  has  power  only  to  adjust  questions 
of  compensation  due  to  the  injured  employe  or  to  persons  claiming 
through  him.®^     It  has  jurisdiction  over  charges  for  medical,  sur- 

8  2  Maryland  Casualty  Co.  v.  Berry,  1  Cal.  I.  A.  C.  Dec.  237. 

Oommission  held  without  jurisdiction:  Where  in  an  action  properly  before 
this  Commission  an  issue  is  raised  over  the  contract  of  insurance,  by  the 
insurance  carrier  setting  up  as  a  defense  a  claim  that  the  employer  secured 
his  insurance  through  false  statements  as  to  the  wage  of  the  injured  employe, 
the  claim  of  the  insurance  carrier  is  not  a  proper  ground  of  defense  under 
the  Act,  but  a  matter  to  be  determined  in  another  court  having  jurisdiction 
over  private  contractual  rights  between  insurers  and  insured.  Souza  v. 
Stangland  &  Co.,  2  Cal.  I.  A.  C.  Dec.  765.  Where  an  application  was  filed  by 
an  employer  to  have  determined  a  dispute  arising  between  him  and  the 
insurance  carrier  founded  upon  the  contract  between  them,  the  Commission 
held  that  it  had  no  jurisdiction.  Mendocino  Lumber  Co.  v.  Southwestern 
Surety  Insur.  Co.,  2  Cal.  I.  A.  C.  Dec.  755.  The  Commission  has  no  power 
to  determine  how  much  an  employe  or  an  employer  or  an  insurance  carrier 
shall  be  charged  for  medical,  surgical,  and  hospital  services,  where  the  party 
to  be  charged  for  the  services  is  the  party  who  has  contracted  for  them.  In 
this  event  it  is  a  matter  for  agreement  entirely  between  the  contracting  par- 
ties.   Brown  v.  Davies-Leavitt  Co.,  2  Cal.  I.  A.  C.  Dec.  12. 

Commission  held  to  have  jurisdiction:  The  Commission  has  jurisdiction  of  a 
claim  by  a  principal  or  general  contractor  against  a  subcontractor  under 
section  30  (c)  of  the  Act,  for  reimbursement  for  compensation  paid  to  the 
injured  employe  of  the  subcontractor,  as  such  a  claim  is  one  arising  out  of, 
affecting,  and  concerning  compensation,  and  is  analogous  to  a  right  of  subro- 


§  224  workmen's  compensation  788 

gical,  and  hospital  services  and  other  expenditures  to  cure  and  re- 
lieve an  injured  employe,  only  where  such  expense  has  been  neces- 
sarily incurred  by  or  on  behalf  of  the  employe,  because  of  the  em- 
ployer's neg-lect  or  refusal  to  reasonably  furnish  them.  In  this  event 
the  Commission,  in  charging  the  expense  to  the  employer,  will  reg- 
ulate these  charges  as  it  deems  reasonable.®^  Where  an  undertaker 
files  an  application  for  adjustment  of  a  claim  for  expense  of  the 
burial  of  the  deceased  employe,  there  being  no  dependents,  the  Com- 
mission will  assume  jurisdiction.®*  Where  the  insurance  carrier 
is  responsible  for  medical  services  rendered  an  injured  employe,  the 
Commission  will  assume  jurisdiction  of  an  application  of  the  phy- 
sician for  adjudication  of  a  claim  against  the  insurance  carrier.®^ 
But  where  it  is  claimed  that  the  employer  has  not  notified  his  in- 
surance carrier  of  an  accident  in  time  for  the  latter  to  furnish  med- 
ical and  surgical  treatment  to  the  injured  employe,  such  claim  rais- 
es an  issue  solely  between  the  insurer  and  insured,  based  upon  the 
'conditions  of  the  contract  of  insurance,  over  which  the  Commission 
has  no  jurisdiction.®® 

The  California  Commission  cannot  make  an  award  against  a  prop- 
erty owner  in  favor  of  an  independent  contractor's  employe.  Such 
liability  can  be  enforced  only  in  ordinary  proceedings  in  the  regu- 
larly constituted  courts.®^  Where  it  clearly  appears  from  the 
application  that  there  is  a  want  of  jurisdiction,  and  no  good  pur- 
pose can  be  served  by  a  hearing  to  take  testimony,  and  no  prob- 
ability of  such  testimony  correcting  possible  inaccuracies  in  the 

gatiou  to  the  interest  of  the  injured  employe  whose  claim  he  had  paid.  Hattan 
V.  Hattan,  1  Cal.  I.  A.  C.  Dec,  324. 

83  (Wk.  Comp.  Act,  §  15a)  Brown  v.  Davies-Leavitt  Co.,  2  Cal.  I.  A.  C. 
Dec.  12. 

84  Suhr  &  Co.  V.  State  Comp.  Insur.  Fund,  2  Cal.  I.  A.  C.  Dec.  725. 

85  Mahan  v.  Frankfort  General  Insur.  Co.,  2  Cal.  I.  A.  C.  Dec.  530. 

86  Conner  v.  Acme  Cement  &  Plaster  Co.,  1  Cal.  I.  A.  C.  Dec.  143. 

87  (Wk.  Comp.  Act,  §  30)  Carstens  v.  Pillsbury  (Cal.  1910)  158  Pac.  218; 
Sturdivant  v.  Pillsbury  (Cal.  1916)  158  Pac.  222. 


789  SETTLEMENT  OF  CONTROVERSIES  §  224 

application  and  showing  jurisdiction  appears,  the  Commission 
will  make  its  findings  and  award  forthwith  upon  the  record  be- 
fore it.*^  It  will  dismiss  a  proceeding  prior  to  hearing  when 
it  appears  from  the  application  and  the  statement  of  applicant's 
attorneys  that  he  was  engaged  in  agricultural  labor  and  that 
the  defendants  have  not  accepted  the  provisions  of  the  Act,  even 
though  the  latter  have  made  no  formal  appearance.®^ 

A  nominal  award  to  preserve  jurisdiction,  authorized  under  the 
California  Act,  will  not  be  made  where  the  evidence  shows  that 
the  only  purpose  of  a  request  for  such  award  is  to  allow  the  em- 
ploye to  require  an  operation  at  a  future  date,  and  that  his  right  to 
such  operation  can  be  determined  at  once.^° 

In  a  Connecticut  case,  where  the  claimant  alleged  that  the  med- 
ical treatment  provided  by  his  employer  within  the  thirty-day  pe- 
riod was  improper,  causing  an  aggravation  of  the  injury,  the  Com- 
missioner held  that  any  right  to  further  medical  expenses,  or  dam- 
ages for  such  improper  treatment,  should  be  enforced  at  law  in  the 
courts,  and  that  he  had  no  jurisdiction.®^  Commissioner  Williams 
refused  to  pass  on  whether  the  Connecticut  Act  conflicts  with  ex- 
isting  treaty  rights  between  the  United  States  and  Italy,  holding 
that  it  would  not  be  seemly  or  becoming  for  one  in  his  position  to 
determine  such  an  issue ;®^  and  Commissioner  Donohue  has  said: 
"Whether  or  not  there  is  any  conflict  between  the  law  of  this  state 
on  this  particular  point  and  the  treaties  between  Italy  and  the 
United  States  I  am  not  particularly  concerned.  It  is  a  matter  for 
consideration  by  a  tribunal  of  proper  jurisdiction  and  entirely  with- 
out my  province  to  pass  upon."  ®^     But  in  another  case  Comniis- 

88  Topping  V.  Ellis,  2  Cal.  I.  A.  C.  Dec.  382. 

89  Gomez  v.  Thomas  &  Ettinger,  2  Cal.  I.  A.  C.  Dee.  877. 

90  (Wk.  Comp.  Act,  §  25  [c],  [d])  Taylor  v.  Spreckels,  2  Cal.  I.  A.  C.  Dec. 
62.    Temporary  awards,  see  §  188,  ante. 

91  Cushner  v.  H.  C.  Rowe  &  Co.,  1  Conn.  Comp.  Dec.  574. 

92  Salvatore  v.  Andreani  &  Gelormino,  1  Conn.  Comp.  Dec.  IGO. 

93  Viotti  V.  De  Bisschop,  1  Conn.  Comp.  Dec.  195. 


§  224  workmen's  compensation  790 

sioner  Beers  considered  the  question,  and  stated  that  there  was  no 
conflict  between  the  treaty  and  the  Act.®^ 

A  Commission  or  Board  has  no  authority  to  pass  upon  the  con- 
stitutionality of  a  Compensation  Act.^^ 

§  225.     Service  of  summons 

By  sections  22  and  74  of  the  California  Act,  the  Industrial  Acci- 
dent Commission  is  allowed  to  prescribe  the  mode  of  making  serv- 
ice of  summons  upon  defendants  proceeded  against  before  it.  The 
Commission  has,  in  its  rules  of  procedure,  directed  that  service  of 
summons  be  made  either  by  personal  service  or  by  mail  substan- 
tially in  the  same  manner  as  provided  by  the  Code  of  Civil  Pro- 
cedure for  mailing  notices  in  civil  actions.  Where,  therefore,  serv- 
ice of  summons  has  been  made  upon  a  defendant  by  mail  according 
to  the  rules  of  the  Commission,  it  has  jurisdiction  over  the  person 
of  such  defendant,  in  the  absence  of  affirmative  proof  of  failure  to 
receive  the  notices  and  inability  to  make  a  defense  upon  the  mer- 
its of  the  case  caused  thereby.''^ 

§  226.     Parties 

As  a  rule,  applications  for  death  benefits  are  properly  made  by 
the  dependents,  rather  than  by  the  executor  or  administrator  of  the 
deceased  workman. ^^     Where  the  evidence  in  an  application  for  an 

94  Fabbian  v.  C.  W.  Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  305. 

9  5  Cardinale,  etc.,  v.  Valenzauo,  Bulletin  No.  1,  111.,  p.  114;  Chicago  Savings 
Bank  &  Trust  Co.  v.  Chicago  Rys.  Co.,  Bulletin  No.  1,  111.,  p.  104. 

0  6  Silva  V.  Common,  1  Cal.  I.  A.  C.  Dec.  644. 

9  7  An  employs  was  killed  in  the  course  of  his  employment,  leaving  surviving 
him  a  widow,  a  minor  child  aged  20  months,  a  widowed  mother,  and  two  sis- 
ters aged  23  and  9  years.  Some  months  prior  to  his  death  he  deserted  his  wife 
and  child,  without  any  fault  on  the  part  of  his  wife,  since  which  time  he  had 
■contributed  nothing  toward  their  support.  He  had  never  contributed  any- 
thing toward  the  support  of  his  mother  or  either  of  his  sisters.  The  Comr 
mission  held  that  it  was  not  necessary  for  the  application  for  compensation 
to  be  filed  by  the  administrator  or  executor  of  the  deceased.  In  re  Laura 
Shaffer,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  7. 


791  SETTLEMENT  OF  CONTROVERSIES  §  227 

award  by  a  person  other  than  the  injured  employe,  the  latter  being 
still  living,  discloses  that  the  employe  has  not  received  full  com- 
pensation, the  California  Commission  will  on  its  own  motion  order 
him  to  be  brought  in  as  a  coapplicant,  and  will  award  him,  when 
brought  in,  whatever  compensation  he  may  be  entitled  to.''^  With- 
out any  power  of  attorney  or  other  personal  authorization,  the  Chi- 
nese consul  has,  under  treaty  rights,  the  power  to  institute  pro- 
ceedings in  behalf  of  a  nonresident  widow  of  the  injured  employe."^ 
The  Wisconsin  Act  contemplates  that  a  minor  may,  the  same  as 
an  adult,  and  without  being  represented  by  a  guardian,  apply  to  the 
Industrial  Commission  to  determine  the  compensation  to  be  award- 
ed for  an  injury.^ 

§  227.     Pleading  and  issues  under  California  Act 

The  California  Commission  has  expressed  a  desire  that  attorneys 
allege  only  those  claims  or  defenses  upon  which  they  expect  to 
rely,  to  the  end  that  parties  may  not  be  put  to  the  useless  expense 
of  subpoenaing  witnesses  to  prove  or  disprove  allegations  which 
will  not  be  in  controversy  at  all.  If  any  applicant  or  defendant 
overlooks  or  fails  in  application  or  answer  to  allege  any  claim  or 
defense,  he  will  not  thereby  be  barred  from  so  doing  at  the  hear- 
ing, where  good  faith  has  been  exercised.-  Where  the  defendant 
does  not  plead  the  defense  that  the  application  was  not  filed  with- 
in the  time  prescribed  by  law,  but  raises  such  defense  promptly  at 
the  hearing,  he  is  entitled,  in  view  of  the  informality  of  proceedings 
before  the  Commission,  to  have  such  defense  considered  and  de- 
termined.^ An  answer  is  not  indispensable.  In  many  cases  none  is 
filed.     The  Commission  may,  upon  its  own  motion,  investigate  is- 

9  8  Newkirk  v.  Union  Ice  Co.,  1  Cal.  I.  A.  C.  Dec.  166. 

8  9  Ching  Shee  v.  Madera  Sugar  Pine  Co.,  2  Cal.  I.  A.  C.  Dec.  1014. 

1  (St.  1915,  §§  2.394—3,  2394—8,  2394—31,  and  2394—7,  subsec.  2).  Menom- 
inee Bay  Shore  Lumber  Co.  v.  Indus.  Com.,  162  Wis.  344,  156  N.  W.  151. 

2  Shouler  v.  Greenberg,  1  Cal.  I.  A.  C.  Dec.  146. 

3  Schultz  V.  Pacific  Electric  Ry.  Co.,  2  Cal.  I.  A.  C.  Dec.  709. 


§  228  workmen's  compensation  792 

sues  not  raised  by  the  answer.  The  Act  contains  no  provision  au- 
thorizing a  default  for  failure  to  answer,  and  defaults  are  not  al- 
lowed by  the  Commission.  The  only  function  of  the  answer  is  to 
call  the  attention  of  the  Commission  to  defensive  matters  relied 
upon.*  The  Commission  is  not  limited  in  the  trial  of  causes  to  the 
issues  raised  by  the  pleadings,  but  may,  on  its  own  motion,  inves- 
tigate issues  outside  the  pleadings,  and  will  require  an  applicant 
substantially  to  prove  his  case,  even  though  the  defendant  makes 
no  answer  thereto.^  The  defense  of  the  statute  of  limitations  is  not 
lost  by  failure  to  plead  it  in  answer.^  The  Commission  will  not  give 
opinions  on  hypothetical  cases,  or  lay  down  general  statements  or 
rules  of  law  binding  upon  it,  aside  from  rulings  necessary  to  the 
making  of  findings  of  fact,  awards,  and  opinions  upon  issues  arising 
in  the  causes  submitted.''' 

§  228.     Taking  and  reception  of  testimony 

A  Commission,  in  seeking  out  the  truth  and  attempting  to  do  jus- 
tice to  the  parties  under  the  Act,  cannot  be  bound  closely  by  the 
formal  rules  of  evidence  established  by  courts  of  law  to  prevent 
perversion  of  justice  in  jury  trials.  It  must  have  the  more  liberal 
rules  and  methods  of  the  equity  courts.^  Some  Commissions  con- 
sider statements  not  made  under  oath.^  Under  the  California  Act 
the  Commission  need  not  make  its  award  upon  the  basis  only  of  a 
stipulation  of  fact  submitted  by  the  parties,  but  may  make  further 
investigations  of  its  own,  and  take  further  testimony,^"     It  is  not 

4  StoU  V.  Ocean  Shore  Railroad  Co.,  2  Cal.  I,  A.  C.  Dec.  SI. 

5  Id. 

6  Id. 

7  Salvatore  v.  New  England  Casualty  Co.,  2  Cal.  I.  A.  C.  Dec.  355. 

8  Patch  V.  First  National  Bank  of  Milwaukee,  Rep.  Wis.  Indus.  Com.,  1914- 
15,  p.  9. 

9  Frankfort  General  Ins.  Co.  v.  Pillsbury  (Cal.)  159  Pac.  150. 

10  It  was  held  in  Biero  v.  New  Haven  Hotel  Co.,  1  Conn.  Comp.  Dec.  52, 
that  in  compensation  proceedings  before  the  Commissioner  witnesses  may  be 


793  SETTLEMENT  OF  CONTROVERSIES  §  22^ 

bound  by  medical  testimony  of  physicians,  although  unanimous. 
If  such  testimony  is  weak  or  contradictory,  and  unprofessional  tes- 
timony is  more  probable,  the  Commission  will  be  governed  by  the 
merits. ^^  That  an  effort  to  procure  an  adjournment  proved  futile 
did  not  make  it  incumbent  on  the  Michigan  Board  to  grant  further 
time  to  take  additional  testimony.^^ 

§  229.     California 

Due  process  of  law  requires  that  the  party  against  whom  a  claim 
is  presented  shall  have  opportunity  to  be  present  when  the  evi- 
dence to  sustain  the  claim  is  introduced. ^^  There  is  nothing  in  the 
California  Act  which  requires  taking  of  testimony  in  shorthand,  al- 
though any  party  in  interest  at  the  hearing  may  at  his  own  expense 
have  a  reporter  present  to  take  such  testimony,  if  desired.  All  that 
is  required  is  that  the  substance  of  the  evidence  given  on  material 
points  be  taken  by  the  referee  and  reported  to  the  Commission. ^- 
The  Commission  may,  without  notice  to  either  party,  cause  testi- 
mony to  be  taken,  and  where  the  only  matter  upon  which  it  desires 
information  is  of  a  scientific  or  mechanical  nature,  it  feels  no  re- 
luctance in  selecting  its  own  experts  and  in  taking  testimony  from 
them  without  prior  notice  to  either  side.  In  such  cases,  however, 
it  is  the  policy  of  the  Commission  to  send  a  copy  of  such  report  to 

examined  not  under  oath,  if  due  regard  is  liad  to  such  fact  in  weighing  the 
evidence.  In  Mahouey  v.  Seymour  Mfg.  Co.,  1  Conn.  Comp.  Dec.  292,  the 
Commissioner,  with  the  approval  of  the  parties,  considered  the  written  state- 
ments of  surgeons  who  treated  the  applicant  as  evidence,  though  made  out 
of  court  and  not  under  oath  (Wk.  Comp.  Act,  §  25). 

11  Snyder  v.  Pacific  Tent  &  Awning  Co.,  3  Cal.  I.  A.  C.  Dec.  1. 

12  (Pub.  Acts  Ex.  Sess.  1912,  No.  10,  pt.  3,  §  11)  Red  field  v.  Mich.  Work- 
men's Compensation  Mut.  Ins.  Co.,  1S3  Mich.  G.33,  150  N.  W.  362. 

13  Carstens  v.  Pillsbury  (Cal.  1916)  158  Pac.  218. 

14  McCay  v.  Bruce.  2  Cal.  I.  A.  C.  Dec.  54.  The  Act  does  not  require  that 
testimony  taken  at  hearings  be  taken  down  verbatim  by  shorthand  or  other- 
wise. A  referee  is  only  retjuired  to  report  to  the  Commission  the  substance  of 
the  evidence  received  by  him  upon  the  issues.     Id. 


§  229  workmen's  compensation  794 

all  parties  interested,  so  that  they  may  have  an  opportunity  to  reply 
or  controvert  the  testimony  before  a  decision  is  reached. ^°  While 
stipulations  may  bind  the  parties,  the  Commission  in  all  proceed- 
ings in  which  evidence  is  introduced  will  make  the  facts,  and  not  the 
stipulations  the  determining  factor,  where  it  appears  that  the  stipu- 
lations were  entered  into  under  a  misapprehension.^^  Though  the 
parties  have  stipulated  that  the  conclusions  of  medical  referees  ap- 
pointed by  themselves  shall  fix  the  extent  of  disability,  the  Commis- 
sion has  power,  with  or  without  notice  or  application,  to  direct  an 
examination  by  another  physician,  and  to  base  an  award  on  his 
report.^''  In  certain  cases  reliance  must  be  placed  upon  the  evidence 
of  physicians  as  to  the  existence  of  disability.  Where  the  opinion 
of  physicians  is  that  the  disability  is  not  sufficient  to  prevent  the 
injured  employe  from  resuming  his  employment,  the  Commission 
will  be  guided  by  it.^^  Where  simulation  or  malingering  by  an 
applicant  is  alleged,  the  Commission  will  go  to  great  pains  and  con- 
siderable expense  to  determine  the  issue  fairly,  to  prevent  fraud  and 
imposition.  Usually  it  will  cause  him  to  be  examined  by  experts  of 
its  own  selection,  in  addition  to  the  medical  testimony  presented  by 

15  De  Long  v.  Krebs,  2  Cal.  I.  A.  C.  Dec.  256. 

The  power  to  take  testimony  without  notice  to  the  parties  will  be  used 
reluctantly,  and  almost  never  where  issue  has  arisen  and  the  evidence  may  be 
conflicting.  Where,  however,  the  issue  is  simply  one  of  scientific  or  mechani- 
cal fact,  the  Commission  will  select  its  own  experts,  without  notice  to  the 
parties,  as  it  sees  fit.  Its  policy  is,  liowever,  to  submit  the  reports  of  such 
experts  to  the  parties,  and  allow  an  opportunity  for  criticism  before  decision 
is  reached.    Id. 

The  Act  (section  24,  subd.  "b")  expressly  confers  on  the  Commission  the 
power  to  take  testimony  without  notice  to  either  party.  •  Id. 

16  Turner  v.  City  of  Santa  Cruz,  2  Cal.  I,  A.  C.  Dec.  991. 

17  (Wk.  Comp.,  etc..  Act,  §  24)  Leyman  v.  Amalgamated  Oil  Co.,  2  Cal.  I.  A. 
O.  Dec.  921. 

18  Batch  elder  v.  Kreis,  1  Cal.  I.  A.  C.  Dec.  63.  Certain  issues  are  for  medi- 
cal practitioners  to  determine,  and  the  Commission  must  rely  on  their  best 
judgment  and  scientific  knowledge.  Rollnik  v.  Lankershim,  1  Cal.  I.  A.  C. 
Dec.  45. 


795  SETTLEMENT  OF  CONTROVERSIES  §  2^50 

each  side.^®  The  Commission  would  frequently  err  if  it  permitted 
its  decision  to  be  made  wholly  upon  the  evidence  as  it  came  to  it 
in  the  form  of  a  verbatim  transcript.  Honest  witnesses  are  some- 
times blundering-,  and  a  too  liberal  interpretation  of  their  transcribed 
testimon}^  may  cause  it  to  appear  contradictory,  when  in  fact  it  was 
not  intended  that  way.  In  such  cases  the  written  evidence  may 
properly  be  qualified  to  some  extent  by  the  impression  made  upon 
the  mind  of  the  person  holding  the  hearing.-"  In  the  interest  of 
expedition  and  inexpensiveness  of  procedure  the  technical  rules  of 
evidence  are  not  to  be  permitted  to  draw  out  trials  to  an  unneces- 
sary length  or  unduly  increase  the  expense  thereof.-^ 

§  230.     Hearing,  findings,  and  award 

The  award  must  be  supported  by  the  findings  of  fact,  and  every 
finding  of  fact  must  have  some  substantial  evidence  in  its  support, 
though  not  necessarily  the  preponderance  of  evidence.-^     It  nmst 

19  Gordon  v.  Evans,  1  Cal.  I.  A.  C.  Dec.  M. 

2  0  Johnson  v.  Sudden  &  Christeuson,  1  Cal.  I.  A.  C.  Dec.  422. 

21  McDonald  v.  Globe  Laundry  Co.,  2  Cal.  I.  A.  C.  Dec.  217. 

22  (St.  1911,  §  2394—19)  Voelz  v.  Indus.  Com.,  161  Wis.  240,  152  N.  W.  830. 
International  Harvester  Co.  v.  Indus.  Com.,  157  Wis.  167,  147  N.  W.  53,  Ann. 
Cas.  1910B,  330 ;  Reck  v.  Whittlesberger,  181  Mich.  463,  148  N.  W.  247,  Ann. 
Cas.  1916C,  771. 

It  is  essential  that  the  finding  of  the  arbitrators  he  sustained  by  competent 
and  legal  evidence.  Victor  Chemical  Works  v.  Indus.  Board  of  111.  (191G)  274 
111.  11,  113  N.  E.  173.  The  Nevp  York  Commission's  determination  as  to  the 
facts,  being  a  quasi  judicial  determination,  must  rest  on  the  facts  presented 
to  it.  The  Commission  cannot  arbitrarily  act  on  the  information  it  receives, 
or  in  direct  violation  of  the  conceded  facts,  but  must  base  its  determination 
on  the  undisputed  facts  and  the  reasonable  inferences  to  be  drawn  from  the 
general  situation.  Gardner  v.  Horseheads  Const.  Co.,  171  App.  Div.  66,  156 
N.  Y.  Supp.  899.  The  Commission  cannot  make  an  award,  in  the  absence  of 
at  least  some  evidence  that  the  employe  met  with  an  injury  while  he  was  at 
work  for  the  specified  employer,  and  as  a  conye(iuonce  of  something  that  had 
a  relation  to  the  work  of  the  employer,  something  done  by  him  or  by  others 
while  he  was  so  employed.  Collins  v.  Brooklyn  Union  Gas  Co.,  171  App.  Div. 
381,  156  N.  Y.  Supp.  957. 


§  230  workmen's  compensation  79G 

result  from  this  that  a  finding  of  fact  made  by  a  Commission  can- 
not be  based  on  mere  conjecture  any  more  than  a  finding  of  fact 
made  by  a  court.  It  does  not  require  so  much  evidence  in  its  sup- 
port, but  it  cannot  be  upheld  without  evidence.-^ 

The  finding  and  award  must  give  all  facts  essential  to  the  case 
in  hand,  and  such  questions  of  law  as  were  presented  and  ruled  on. 
No  other  or  further  detailed  finding  is  required.^*  The  finding  of  a 
Commissioner  under  the  Connecticut  Act  should  not  contain  ex- 
cerpts from  evidence  and  purely  evidential  facts,  but  should  merely 

2  3  Voelz  V.  Indiis.  Com.,  161  Wis.  240,  152  N.  W.  830. 

The  statute  contemplates  and  provides  for  a  full  and  fair  hearing,  and  that 
the  decision  of  the  Conimission  shall  be  based  on  evidence,  and  not  arbitrarily 
made.  It  would  seem  to  be  clearly  outside  of  its  powers  to  And  essential  facts 
that  had  no  support  in  the  evidence.  International  Harvester  Co.  v.  Indus. 
Com.,  157  Wis.  167,  147  N.  W.  53,  Ann.  Cas.  1916B,  330.  Inferences  from  the 
evidence  such  as  a  reasonable  man  might  draw  may  be  made  by  the  Indus- 
trial Accident  Board,  but  such  inferences  must  not  amount  to  mere  conjec- 
ture or  speculation.    In  re  Sanderson's  Case  (Mass.)  113  N.  E.  355. 

24  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245. 

In  the  opinion  of  the  California  Commission,  it  is  not  required  by  the  Act 
to  make  its  findings  upon  all  issues  raised  by  the  application  and  denied  in 
the  answer.  It  is  required  merely  to  make  its  findings  upon  all  facts  neces- 
sary to  entitle  the  injured  employe  to  compensation.  This  requirement  is 
satisfied  by  a  bare  finding  that  such  facts  are  or  are  not  established,  without 
going  into  detail  thereon.  Nevertheless,  without  conceding  any  duty  to  do  so, 
the  Comniission  will,  upon  special  request,  make  a  detailed  finding  upon  any 
material  fact.  Rudder  v.  Ocean  Shore  Railroad  Co.,  1  Cal.  I.  A.  C.  Dec.  209. 
The  Commission  is  not  required  by  law  to  make  detailed  or  special  findings. 
The  consideration  of  the  convenience  of  the  Commission  is  certainly  against 
its  being  required  to  prepare  detailed  findings  in  every  uncontested  case  or 
upon  every  uncontested  issue,  where  a  finding  directly  of  the  fact  to  be  estab- 
lished will  fill  every  requirement  for  disposal  of  the  case.  Where  there  are 
serious  issues  involved,  the  practice  of  the  Commission  to  incorporate  in  its 
opinion  a  review  of  the  evidence  and  the  principles  of  law  involved  is  all  that 
is  necessary  to  indicate  the  basis  upon  which  the  decision  is  reached.  Mason 
V.  Western  Metal  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  284.  Although  the  Commis- 
sion is  not  required  to  make  special  or  extended  findings  of  fact,  it  will  do  so 
upon  reasonable  request,  to  avoid  embarrassing  counsel  in  their  endeavor  to 
place  questions  of  law,  or  mixed  questions  of  law  and  fact,  before  the  courts 
of  the  state  for  review.     Id. 


797  SETTLEMENT  OP  CONTROVERSIES  §  230 

State  the  facts  found,  the  claims  of  law  made,  and  the  rulings  on 
evidence  excepted  to;  in  short,  it  should  conform  to  the  finding 
required  of  the  superior  court  by  the  rules  of  court  and  the  practice 
prevailing  in  that  court. ^^  An  award  is  sometimes  made  expressly 
subject  to  revision,'^®  or  in  graduated  payments,  when  it  appears 
that  justice  may  thereby  be  promoted. ^^  The  provision  of  the  Con- 
necticut Act  requiring  that  the  award  be  filed  with  the  clerk  of  the 
superior  court  of  the  county  where  the  accident  occurred  is  direc- 
tory only.^® 

A  general  finding  that  the  applicant  sustained  a  total  disability 
from  the  accident  cannot  be  construed  as  a  finding  that  a  later 
injury  contributing  to  the  disability  was  due  to  natural  causes.^® 

If  it  be  conceded  that  an  examiner  had  no  authority  to  make  find- 
ings, the  parties,  after  submitting  the  case  to  him  for  his  findings, 
are  not  in  a  position  to  object  to  his  power  to  make  such  findings.^" 

It  is  a  condition  precedent  to  the  power  of  the  Michigan  Board 
to  make  an  award  that  it  shall  have  decided  on  the  facts  found  by 
it  that  the  injured  person  was  an  employe,  that  the  injury  was  the 
result  of  an  accident,  and  that  the  accident  arose  in  the  course  of 
employment.*^ 

2  5  Hartz  V.  Hartford  Faience  Co.  (1916)  90  Conn.  5B9,  97  Atl.  1020. 

2G  In  Hurlowski  v.  American  Brass  Co.,  1  Conn.  Comp.  Dec.  6.  where,  ac- 
cording to  the  opinion  of  an  expert,  the  workman's  disability  would  probably 
disappear  in  two  months,  an  award  was  made  for  that  period,  subject  to 
revision  at  that  time,  with  due  regard  to  the  workman's  care  in  obtaining 
proper  medical  treatment  in  the  meantime. 

2  7  In  Flannery  v.  O'Brien,  1  Conn.  Corap.  Dec.  264,  where  the  Commissioner 
found,  upon  the  testimony  of  an  expert  surgeon,  that  tlie  partial  incapacity 
would  exist  for  about  a  year  after  the  injury,  but  with  a  gradual  lessening  in 
extent,  an  award  was  made  of  graduated  payments,  decreasing  in  amount  at 
intervals,  until  incapacity  ceased. 

28  (Wk.  Comp.  Act,  pt.  B,  §  20)  Welton  v.  Waterbury  Rolling  Mill,  1  Conn. 
Comp.  Dec.  78. 

2  9  Pacific  Coast  Casualty  Co.  v.  Pillsbury  Indus.  Ace.  Com.,  171  Cal.  319, 
153  Pac.  24. 

8  0  Winters  v.  Mellen  Lumber  Co.,  Bui.  Wis.  Indus.  Com.,  vol.  1,  p.  89. 

81  Bell  V.  Hayes-Ionia  Co.  (Mich.)  158  N.  W.  179. 


§  230  workmen's  compensation  798     1! 

After  a  decision  is  once  rendered  and  filed,  the  Illinois  Industrial 
Board  is  vested  with  no  power  to  set  aside,  disturb,  or  change  its 
own  findings  upon  the  record. ^^ 

§  231.     California 

While  hearings  may  be  held  by  a  Commissioner  or  referee,  for 
the  purpose  of  taking  testimony,  the  final  hearing  referred  to  by 
section  25  (a)  of  the  California  Act  must  be  held  by  a  majority  of 
the  Commission,  and  takes  place  when  the  briefs  are  all  in  and  the 
case  submitted  for  decision.  Such  final  hearing  is  held  by  the  Com- 
mission sitting  in  session  for  the  purpose  of  considering  the  evi- 
dence and  determining  the  issues.  The  thirty  days  within  which 
a  decision  must  be  made  after  date  of  final  hearing,  therefore,  com- 
mences to  run  at  the  day  of  such  session  of  the  Commission,  after 
the  case  has  been  submitted. ^^  Where  the  submission  of  a  case  is 
held  open  for  the  filing  of  a  reply  brief,  and  the  decision  is  rendered 
within  thirty  days  after  such  brief  is  filed,  the  provisions  of  the 
Act  are  complied  with ;  but  in  any  event  the  requirement  that  the 
proceeding  be  determined  within  thirty  days  is  directory,  and  not 
mandatory,  nor  a  cause  of  forfeiture  of  jurisdiction.^*  Where  there 
has  been  unreasonable  delay  of  attorneys  for  the  applicant  in  pros- 
ecuting the  claim,  by  failing  to  present  evidence  or  arguments  for 
more  than  six  months,  the  Commission  will  render  a  decision  on  the 
record  before  it.^^  Where  it  is  impossible  at  the  time  of  the  hear- 
ing to  determine  the  percentage  of  permanent  disability,  by  reason 

3  2  Mustaccio  v.  Simpson  Construction  Co.,  Bulletin  No.  1,  111.,  p.  60. 

33  Phillips  V.  Chanslor-Canfield  Midway  Oil  Co.,  1  Cal.  I.  A.  0.  Dec.  5S0. 

34  (Wk.  Comp.  Act,  §  25  [a])  Rives  v.  Smith,  2  Cal.  I.  A.  C.  Dec.  972.  Sec- 
tion 25  of  the  Act  is  directory,  and  not  mandatory.  Failure  to  render  a  de- 
cision after  the  30-day  period  does  not  make  void  such  decision,  or  deprive 
the  Commission  of  any  power  to  make  a  decision.  Phillips  v.  Chanslor-Can- 
field Midway  Oil  Co.,  1  Cal.  I.  A.  C.  Dec.  580. 

35  (Roseberry  Act).  Jackson  v.  Mammoth  Copper  Mining  Co.  of  Maine,  2 
Cal.  I.  A.  C.  Dec.  915. 


799  SETTLEMENT  OP  CONTROVERSIES  §  231 

of  applicant's  physical  condition  not  yet  indicating  the  final  out- 
come of  the  injury,  an  award  will  be  made  covering-  the  temporary 
total  disability  to  the  date  of  the  hearing  or  thereafter,  and  the 
case  continued  until  a  final  determination  can  safely  be  made.^" 
Where  compensation  is  denied  because  no  permanent  disability  is 
shown,  but  there  is  a  possibility  that  present  unhealed  injuries  may 
result  in  permanent  disability  later,  the  award  against  the  appli- 
cant will  be  made  subject  to  the  right  of  the  Commission  to  reopen 
the  proceeding  at  any  time  within  two  hundred  and  forty-five 
weeks,  upon  a  showing  that  permanent  disability  has  resulted.^'' 
An  optional  award,  allowing  the  employer  to  provide  an  operation 
to  relieve  the  workman's  disability,  and  providing  that  if  he  refuses 
the  operation  indemnity  may  be  terminated,  is  not  invalid  on  the 
ground  that  if  the  employer  provides  the  operation  he  will  be  re- 
quired to  pay  for  surgical  treatment  beyond  the  ninety-day  limit 
fixed  by  the  statute,  since  the  award  leaves  it  optional  with  him  to 
provide  or  not  provide  the  operation.^^ 

Where  an  application  is  made  by  a  defendant  employer,  subse- 


36  Blass  V.  Studebaker  Corp.  of  America,  1  Cal.  I.  A.  C.  Dec.  162. 

Where  by  the  testimony  of  the  physicians  who  have  attended  or  examined 
the  injured  man,  it  appears  that  he  has  probably  suffered  a  permanent  partial 
disability  entitling  him  to  65  per  cent,  of  his  average  weekly  earnings  for  a 
period  of  104  weeks,  an  award  will  be  made  at  this  amount,  reviewable  at 
the  end  of  one  year,  if  a  medical  examination  at  that  time  should  disclose 
that  the  injury  was  more  or  less  serious  than  testified  to  at  the  time  of  the 
hearing.  Petersen  v.  Pellasco,  2  Cal.  I.  A.  C.  Dec.  199.  Where  an  employe 
has  been  seriously  injured,  and  at  the  date  of  the  hearing  of  his  case  it  is 
impossible  to  determine  whether  his  injuries  will  result  in  permanent  dis- 
ability or  not,  or  the  extent  of  such  permanent  disability,  a  temporary  par- 
tial disability  indemnity  representing  the  loss  of  earning  power  of  the  appli- 
cant will  be  awarded  until  such  time  as  his  permanent  disability,  if  any,  can 
be  definitely  determined.  Upon  the  determination  of  such  percentage  of  per- 
manent disability,  the  payments  previously  made  may  be  credited  upon  the 
amount  due.     Snyder  v.  Goodwin,  1  Cal.  I.  A.  C.  Dec.  433. 

87  Ely  V.  Maryland  Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  335. 

3  8  Southwestern  Surety  Ins.  Co.  v.  Pillsbury  (Cal.)  158  Pac.  762. 


§  231  workmen's  compensation  800 

quent  to  the  entering  of  the  findings  and  award  against  him,  re- 
questing that  his  insurance  carrier  be  joined  as  party  defendant  in 
the  proceeding  and  be  made  solely  liable  for  the  payment  of  the 
award,  and  he  dismissed  from  all  liability,  and  notice  is  also  given 
to  the  insurance  carrier  and  the  applicant  employe,  as  required 
by  law,  the  Commission  will  give  notice  of  its  intention  to  amend 
the  findings  and  award  to  this  effect,  and  set  a  date  for  hearing 
upon  the  advisability  of  making  the  amendment  joining  the  insur- 
ance carrier  and  making  it  solely  liable.  Unless  good  cause  be 
shown  at  the  hearing,  at  which  hearing  the  insurance  carrier  is 
privileged  to  defend  upon  the  merits  of  the  case,  the  findings  and 
award  will  be  amended.'® 

Where  the  Commission  finds  the  ultimate  facts  in  controversy,  it 
is  not  required  to  make  specific  findings  upon  probative  matters.*" 
An  award  providing  for  the  termination  of  indemnity  only  upon 
the  ceasing  of  disability  or  on  the  further  order  of  the  Commission 
is  not  open  to  the  objection  that  it  does  not  limit  the  time  of  pay- 
ment to  the  number  of  weeks  prescribed  by  the  statute  as  the 
maximum,  and  that  it  is  invalid  for  failure  to  do  so.  Since  the 
statute  makes  the  limitation,  the  order  ceases  to  be  effective  at  the 
end  of  that  period.*^ 

§  232.     Review  by  special  tribunal 

A  board  vested  with  power  to  review  the  decision  of  a  commit- 
tee of  arbitration  may  pass  on  all  questions  relative  to  the  payment 
of  compensation,*-  and  may  re-establish,  increase,  diminish,  or  end 
compensation.*'     A  majority  of  the  members  of  the  Board  may 

8  9  Stockwell  V.  Waymire,  1  Cal.  I.  A.  C.  Dec.  225. 

4  0  Frankfort  General  Ins.  Co.  v.  Pillsbury  (Cal.)  159  Pac.  150. 

41  Southwestern  Surety  Ins.  Co.  v.  PHlsbury  (Cal.)  158  Pac.  762, 

42  The  Industrial  Accident  Board  is  expressly  given  jurisdiction  to  review 
and  pass  upon  questions  arising  relative  to  the  payment  of  compensation. 
(Wk.  Comp.  Act,  part  III,  §§  13,  14)  Bacik  v.  Solvay  Process  Co.,  Mich.  Wk. 
€omp.  Cases  (1916)   48. 

4  3  Smith  V.  Israel  Bros.,  Bulletin  No.  1,  111.,  p.  1G4. 


801  SETTLEMENT  OF  CONTROVERSIES  §  232 

hear  the  case.**  Where  it  is  impossible  to  determine  where  the 
weight  of  the  testimony  is,  or  reconcile  the  various  phases  of  a 
record  upon  a  question  of  facts,  the  Board  will  generally  follow  the 
conclusions  and  findings  of  the  Committee  of  Arbitration.*^ 

Other  methods  or  means  than  those  specifically  indicated  in  the 
terms  of  the  statute  or  a  specific  rule  of  a  board  are  permissible  to 
bring  the  record  properly  before  the  Board. *^  A  report  which  is  as 
definite  as  the  circumstances  permit  will  not  be  held  insufficient.*^ 
The  chairman  of  the  Arbitration  Committee  has  power  to  authenti- 
cate a  statement  of  facts  upon  failure  of  the  parties  to  file  a  cor- 
rect stenographic  report  or  agreed  statement  of  facts. *^  Failure  to 
object  to  the  filing  of  the  stenographic  report  of  agreed  statement  of 
facts  within  the  time  provided  by  statute,  and  going  to  trial,  is  a 
waiver  of  all  question  concerning  the  regularity  of  proceedings  be- 
fore the  Board.*"  Where  the  parties  fail  to  file  a  stenographic  re- 
port or  agreed  statement  of  facts  within  the  time  prescribed  by 
law,  but  an  authenticated  statement  is  filed  in  apt  time  by  the  Chair- 

44  Two  members  of  the  Board  have  a  right  to  hear  a  case  on  review,  of 
an  award  of  the  Committee  of  Arbitration  as  the  Workmen's  Compensation 
Act  gives  any  member  of  the  Board  power  to  swear  witnesses  and  take  tes- 
timony. Moelier  v.  Bereda  Mfg.  Co.,  Bulletin  No.  1,  111.,  p.  66.  The  mere 
fact  that  evidence  is  heard  by  but  two  members  of  tlie  Board  is  no  ground 
for  striking  the  agreed  statement  of  facts  from  the  files  and  dismissing  the 
cause,  even  though  a  limited  appearance  is  filed  for  that  purpose.  Anderson 
V.  National  Fireproofing  Co.,  Bulletin  No.  1,  111.,  p.  41. 

45  Lynch  v.  Baers  Express  &  Storage  Co.,  Bulletin  No.  1,  111.,  p.  79. 

46EOSSOW  V.  Denvir,  Bulletin  No.  1,  111.,  p.  141;  Hollas  v.  Illinois  Steel 
Co.,  Bulletin  No.  1,  111.,  p.  158. 

47  A  report  of  the  Committee  of  Arbitration  that  "Joe  Beam  is  entitled  to 
receive  and  recover  from  said  respondent,  Thornton  Claney  Lumber  Com- 
pany, the  sum  of  five  and  sa/^^og  ($5.63)  dollars  per  week  for  a  period  of  tem- 
porary total  disability,"  was  sufficient,  where  it  could  not  be  determined 
when  the  disability  would  terminate.  Beam  v.  Thornton  Claney  Lumber  Co., 
Bulletin  No.  1,  111.,  p.  113. 

4  8  (Wk.  Comp.  Act,  §  19,  par.  "b")  Rossow  v.  Denvir,  Bulletin  No.  1,  111.,  p. 
141 ;   Bernstein  v.  Bothman,  Bulletin  No.  1,  111.,  p.  163. 
49  Blake  v.  Herskovitz,  Bulletin  No.  1,  111.,  p.  161. 

HON.COMP. — 51 


§  232  workmen's  compensation  802 

man  of  the  Arbitration  Committee,  the  Board  is  not  estopped  from 
hearing  the  case  on  review.^"  But  if  the  stenographic  report  is 
filed  without  first  submitting  it  to  the  applicant  or  his  attorney 
for  his  authentication,  or  the  stenographic  report  was  not  authen- 
ticated by  any  one  representing  either  the  applicant  or  his  attorney, 
nor  by  the  Chairman  of  the  Arbitration  Committee,  the  petition  for 
review  will  be  dismissed. ^^  A  motion  to  dismiss  for  want  of  a 
stenographic  report  will  be  denied,  where  it  is  shown  that  a  letter 
was  addressed  to  the  Secretary  of  the  Board,  requesting  that  it  be 
submitted  for  authentication.^^ 

An  insurer's  requested  rulings  that  a  claimant  was  not  entitled  to 
compensation,  on  the  report  of  the  Massachusetts  Board  of  Arbi- 
tration finding  that  she  was  not  next  of  kin  or  a  member  of  dece- 
dent's family,  became  immaterial  where  her  claim  was  disallowed 
by  the  Industrial  Accident  Board. ^^  An  employe  was  not  pre- 
cluded by  a  finding  of  the  Massachusetts  Committee  of  Arbitra- 
tion that  he  agreed  to  a  settlement  on  a  basis  of  partial  disability, 
which  would  cease  at  the  end  of  a  certain  number  of  weeks,  where 
such  agreement  had  been  made  after  the  Committee  had  found 
that  total  disability  would  cease  on  a  certain  date,  to  which  finding 
the  employe  did  not  assent,  and  as  to  which  he  did  not  waive  his 
right  of  appeal,  but  he  had  a  right  to  contend  before  the  Industrial 
Accident  Board  that  his  disability  was  total. ^* 

§  233.     Dismissal 

Where  a  cause  is  called  and  applicant  does  not  appear,  a  motion 
to  dismiss  will  be  allowed. ^^     Where  after  a  delay  of  a  year  from 

5  0  Bernstein  v.  Bothman,  Bulletin  No.  1,  111.,  p.  163. 

51  Petrock  v.  Keystone  Steel  &  Wire  Co.,  Bulletin  No.  1,  111.,  p.  89. 

52  Hollas  V.  Illinois  Steel  Co.,  Bulletin  No.  1,  111.,  p.  158. 
5  3  In  re  Kelley's  Case,  222  Mass.  538,  111  N.  E.  395. 

54Duprey  v.  Maryland  Casualty  Co.,  219  Mass.  189,  106  N.  E.  686. 
5  5  Motely  V.  McDonald,  Bulletin  No.  1,  111.,  p.  25. 


803  SETTLEMENT  OF  CONTROVERSIES  §  234 

the  filing  of  the  claim  for  compensation  the  parties  had  taken  no 
steps  to  bring  the  matter  to  a  hearing,  and  upon  notice  of  the  Cal- 
ifornia Commission  that  the  proceeding  would  be  dismissed  for 
want  of  prosecution,  unless  good  cause  be  shown  to  the  contrary, 
the  parties  fail  to  answer  or  show  cause,  the  proceeding  will  be 
dismissed.^"  Where  the  pleadings  show  that  the  application  is  liled 
more  than  six  months  after  the  occurrence  of  the  accident  com- 
plained of,  and  that  no  payment  or  agreement  to  pay  the  claim  has 
been  made,  the  action  will  be  dismissed  without  any  hearing." 
The  case  was  dismissed  without  prejudice  where  after  making  claim 
a  workman  was  not  represented  at  the  hearing  on  the  date  set, 
and  his  wife  stated  that  he  had  disappeared  and  that  she  did  not 
know  where  he  was ;  ^*  also  where  a  workman  claimed  compensa- 
tion for  the  loss  of  a  finger  due  to  blood  poisoning,  and  died  before 
the  hearing  of  the  case,  and  no  one  appeared  to  represent  him.°^ 
Where  the  attorney  of  record  for  the  applicant,  after  the  taking  of 
testimony,  but  before  a  decision,  files  with  the  Commission  a  no- 
tice in  writing  that  the  applicant  has  waived  all  claims  against  the 
defendant  and  requests  a  dismissal  of  the  action,  the  Commission  is 
not  bound  to  dismiss  the  action,  but  may  proceed  with  the  case  and 
render  an  award  of  disability  compensation  to  the  applicant,  where 
the  evidence  has  shown  him  entitled  to  an  award. ^"^ 

§  234.     Reopening    of    case,    rehearing,    and    supplementary    pro- 
ceedings 
A  case  will  be  reopened  and  a  rehearing  granted  when  it  appears 
from  the  showing  made  that  justice  requires  it,  but  not  otherwise.®^ 

5  6  Hunter  v.  Mitchell,  2  Cal.  I.  A.  C.  Dec.  817. 

5  7  Fetch  V.  Lamont  &  Richardson,  2  Cal.  I.  A.  0.  Dec.  982;    as  to  limita- 
tions, see  §  214,  ante. 

5  8  Berthold  v.  McCormick  Steamship  Co.,  2  Cal.  I.  A.  C.  Dec.  993. 
5  9  Rokos  V.  Glaros  &  Papas,  2  Cal.  I.  A.  C.  Dec.  993. 

60  Gerber  v.  Central  Council  of  Stockton,  2  Cal.  I.  A.  C.  Dec.  580. 

61  In   Fiorio  v.   Ferrie,    1   Conn.   Comp.   Dec.   459   (on   motion   to   open   up 
award),  where  claimant  authorized  her  counsel  to  agree  to  facts  stated  and 


§  234  workmen's  compensation  804 

Where  compensation  has  been  awarded  subject  to  modification 
at  a  later  hearing,  if  justified  by  further  evidence  to  be  produced  at 
that  hearing,  and  the  wages  of  the  workman  are  then  found  to  have 
been  more  than  the  amount  upon  which  compensation  was  based 
at  the  first  hearing,  the  modification  of  the  award  can  be  made  retro- 
active to  cover  all  the  payments  awarded.''^  Except  where  the  par- 
ties otherwise  agree  or  waive  their  rights  in  respect  thereto,  where 
a  matter  is  recommitted  under  the  Connecticut  Act  to  the  Commis- 
sioner by  the  superior  court  for  further  hearing,  finding,  and  award, 
it  becomes  the  duty  of  the  commissioner  to  limit  the  scope  of  the 
inquiry  at  such  hearing  to  the  particular  point  on  which  the  court 
found  error.*'^ 

A  settlement  receipt  in  full,  when  not  approved  by  the  Michigan 
Board,  will  not  prevent  the  Board  from   reopening  the  proceed- 

request  an  award,  which  was  done,  it  was  held  not  to  be  ground  for  open- 
ing up  the  award  that  she  understood  she  would  receive  $150  more  than  was 
in  fact  allowed  her  by  the  award.  In  lacovazzi  v.  Coppolo,  1  Conn.  Comp. 
Dec.  476,  where  the  respondent  at  the  time  of  the  hearing  was  ill,  though  not 
seriously,  and  an  hour  before  the  hearing  telephoned  his  business  adviser, 
who  then  telephoned  to  the  Commissioner  to  ask  for  a  continuance,  but,  find- 
ing the  Commissioner  engaged,  took  no  further  action  until  after  he  had 
l>een  notified  of  an  award  against  him  and  execution  taken  thereon,  it  was 
held  there  was  not  sufficient  ground  to  warrant  a  rehearing.  In  Becker  v. 
Blake,  on  petition  for  rehearing,  1  Conn.  Comp.  Dee.  516,  where  no  new 
witnesses  were  offered,  and  the  new  evidence  offered  amounted  to  no  more 
than  "threshing  over  old  straw,"  the  Commissioner  denied  the  rehearing.  In 
Braithwaite  v.  Rowley,  1  Conn.  Comp.  Dec.  .355,  where,  after  stating  at  the 
original  hearing  that  she  wanted  only  an  allowance  for  medical  expense,  and 
no  other  compensation,  claimant  applied  to  reopen  the  award,  and  on  evi- 
dence it  appeared  that  claimant  was  also  entitled  to  disability  indemnity, 
and  that  at  the  prior  hearing  she  had  been  without  counsel  or  adviser,  the 
Commissioner  held  that  the  case  on  its  merits  called  for  a  revision  of  the 
award,  and  so  ordered. 

The  Commission's  right  to  rehear  a  case  is  not  cut  off  by  an  appeal  being 
taken  to  a  higher  court  on  the  original  decision,  the  Commission  having  con- 
tinuing jurisdiction.  McNally  v.  Diamond  Mills  Paper  Co.  (on  rehearing) 
The  Bulletin,  N.  Y.,  vol.  1,  No.  11,  p.  12. 

62  Ryan  V.  Griswold  &  Davis,  1  Conn.  Comp.  Dec.  510. 

63  Schmidt  v.  O.  K.  Baking  Co.,  1  Conn.  Comp.  Dec.  683. 


805  SETTLEMENT  OF  CONTROVERSIES  §  234 

ing,  though  the  workman  and  his  employer  have  agreed  that  the 
workman  shall  receive  one-half  his  weekly  wages,  without  specify- 
ing how  long  such  payments  shall  continue,  and  this  agreement 
has  been  approved  by  the  Board. °*  A  finding  by  the  Committee 
of  Arbitration  under  the  Massachusetts  Act  that  compensation 
should  be  denied  after  a  fixed  date  was  conclusive,  and  a  bar  to  fur- 
ther payments  where  no  review  was  requested  within  the  time  lim- 
ited.''^ The  provision  of  this  Act  that  "no  party  shall  as  a  matter 
of  right  be  entitled  to  a  second  hearing  upon  any  question  of  fact" 
means  that  the  introduction  of  new  evidence  is  a  matter  of  discretion 
ordinarily.  Commonly  there  should  not  be  a  rehearing.  Where 
there  has  been  a  full  trial,  a  final  decree  should  be  entered.^"  An 
award  under  the  New  Jersey  Act  is  subject  to  review  after  one 
year,®^ 

The  Industrial  Commission  of  New  York  held  that  it  would  not 
reverse  a  decision  rendered  by  the  Workmen's  Compensation  Com- 
mission, which  it  succeeded,  unless  the  case  is  very  clear  at  the  re- 
hearing, and  shows  that  a  grave  injustice  has  been  done.^^  Where 
the  facts  show  that  applicant  has  not  been  guilty  of  injurious  prac- 
tices, or  has  done  nothing  to  retard  his  recovery,  the  Illinois  Board 
on  review  will  not  interfere  with  its  former  finding.*''*  Nor  will  it 
disturb  its  finding  where  it  is  not  known  how  long  a  disability  will 
continue,  and  recovery  is  problematical.''** 

Where  a  minor,  appearing  without  a  guardian,  agrees  to  a  stip- 

04  Foley  v.  Detroit  United  Ry.  (Midi.)  157  N.  W.  45. 

6  5  In  re  Hunnewell,  220  Mass.  351,  107  N.  E.  934. 

6G  In  re  Doherty,  222  Mass.  98,  109  N.  E.  887;  In  re  Fierro's  Case,  223 
Mass.  378,  111  N.  E.  957. 

6  7  Banister  Co.  v.  Kriger  (N.  J.  Sup.)  89  Atl.  923,  denying  rehearing  in 
case  reported  in  84  N,  J.  Law,  30,  85  Atl.  1027.  ("Witliin"  was  inadvertently 
used  for  "after"  in  the  former  opinion.) 

esAdler  v.  Thomas  Hefsky  Theater  Co.,  Inc.,  The  Bulletin,  N.  Y.,  vol.  1. 
No.  11,  p.  13. 

6»  Smith  V.  Israel  Bros.,  Bulletin  No.  1,  111.,  p.  164. 
70  Id. 


§  2S5  workmen's  compensation  80G 

ulation  of  facts,  upon  which  compensation  is  awarded  by  the  Wis- 
consin Commission,  and  paid,  and  then  later,  when  he  appears 
by  his  guardian,  it  appears  that  there  is  error  in  the  stipulation  and 
that  the  employe  has  not  received  as  much  as  he  was  entitled  to, 
the  Commission  may  award  such  further  compensation  as  the  Act 
provides.''^ 

§  235.     California 

The  California  Act  provides  that  any  person  aggrieved  by  any 
final  order,  decision,  award,  rule,  or  regulation  of  the  Commission 
may  apply  to  the  Commission  for  a  rehearing  in  respect  to  any  mat- 
ters determined  or  covered  by  such  final  order,  decision,  award, 
rule,  or  regulation  and  specified  in  the  application  for  rehearing 
within  the  time  and  in  the  manner  provided  for  in  the  Act,  and 
not  otherwise.'^-  Where  it  appears  to  the  Commission  that  any 
party  has  made  a  bona  fide  offer  of  material  evidence,  which  could 
not  reasonably  be  discovered  and  presented  at  a  prior  hearing,  or 
which  the  parties  did  not  produce  because  of  lack  of  opportunity, 
by  failure  to  receive  notice,  a  rehearing  will  be  granted  in  the  fur- 
therance of  justice. '^^  A  rehearing  will  be  denied  where  the  appli- 
cation is  not  properly  verified,''*  or  contains  a  mere  general  state- 
ment that  a  particular  finding  is  not  sustained  by  the  evidence,''^  or 

'!'i  Schmidt  v.  Menominee  Bay  Shore  Lumber  Co.,  Eep.  Wis.  Indus.  Com. 
1914-15,  p.  22. 

7  2  Wk.  Comp.  Act,  Laws  1913,  p.  315,  §  81. 

73  DeLong  v.  Krebs,  1  Cal.  I.  A.  C.  Dec.  592. 

7  4  Where  an  application  for  a  rehearing  is  filed,  but  is  not  verified  upon 
oath  as  required  by  section  81  (c)  of  the  Act,  the  request  for  a  rehearing  must 
he  denied.     Porter  v.  Anderson,  2  Cal.  I.  A.  C.  Dec.  67. 

7  5  The  requirement  that  an  application  for  rehearing  "shall  set  forth  spe- 
cifically and  in  full  detail  the  grounds  upon  which  the  applicant  considers 
said  final  order,  decision,  award,"  etc.,  unjust  or  unlawful,  means  that  he 
must  do  something  more  than  make  the  general  statement  that  a  certain 
finding  is  not  sustained  by  the  evidence.  Pacific  Coast  Casualty  Co.  v.  Pills- 
bury,  2  Cal.  I.  A.  C.  Dec.  538,  171  Cal.  52,  151  Pac.  658. 


807  SETTLEMENT  OF  CONTROVERSIES  §  235 

does  not  show  the  nature  and  purport  of  the  newly  discovered  evi- 
dence on  which  it  is  based,  and  why  with  reasonable  diligence  it 
could  not  have  been  presented  at  the  prior  hearing/*'  where  sup- 
plementary proceedings  offer  adequate  relief,"  where  notices 
prerequisite  to  the  relief  sought  have  not  been  given, ^^  and  where 
defective  service  complained  of  is  not  alleged  to  have  been  preju- 
dicial.'^^     It  is  not  ground  for  a  rehearing  that  the  decision  was  not 

76  A  petition  for  a  rehearing  upon  the  ground  of  newly  discovered  evidence 
must  sliow  the  nature  and  purport  of  such  evidence,  so  that  the  Commission 
may  ascertain  its  materiality,  weight,  and  why  it  could  not,  with  reasonable 
diligence,  have  been  produced  at  the  prior  hearing;  otherwise  the  petition 
will  be  denied.  Hewitt  v.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  286. 
It  is  not  sufficient  to  allege  the  possession  of  new  evidence  as  to  disability ; 
the  evidence  itself  must  be  stated  or  outlined,  if  the  petitioner  desires  the 
Commission  to  consider  it  as  a  ground  for  rehearing.  The  continuing  juris- 
diction of  the  Commission  over  awards  enables  it  to  alter  or  amend  them  for 
good  cause  shown,  and  further  hearings  will  be  allowed  upon  proper  show- 
ing. (Wk.  Comp.,  etc.,  Act,  §  25  [d])  Daly  v.  Mahoney  Bros.,  1  Cal.  I.  A.  C. 
Dec.  625. 

7  7  Where  the  award  of  the  Commission  has  been  entered  ordering  the  de- 
fendant to  pay  the  reasonable  value  of  medical  and  surgical  treatment  fur- 
nished the  applicant  within  90  days  from  the  accident,  without  specifying 
the  amount  thereof,  and  an  application  for  a  rehearing  is  requested  upon 
the  ground  that  medical  bills  have  not  been  approved  by  the  Commission,  or 
the  reasonable  value  of  the  medical  services  determined,  such  application 
for  a  rehearing  should  be  denied,  for  the  reason  that  the  claims  for  treat- 
ment can  be  approved  at  any  time  upon  request,  and  it  is  not  necessary  to 
reopen  the  case  to  do  so.  Supplementary  proceedings  are  sufficient  for  this 
purpose.     Billingsley  v.  United  Tuna  Packing  Co.,  2  Cal.  I.  A.  C.  Dec.  133. 

7  8  Where  an  employer  in  a  petition  for  rehearing  alleges  that  the  Commis- 
sion erred  in  not  dismissing  the  proceeding  as  to  the  employer  and  making 
the  insurance  carrier  solely  liable  for  compensation  awarded  to  an  employe, 
and  it  appears  from  the  record  that  the  notices  required  by  section  34  (e)  of 
the  Compensation  Act  as  a  prerequisite  to  the  substitution  of  the  insurance 
carrier  and  relief  of  the  employer  from  liability  had  not  been  given,  such 
petition  for  rehearing  will  be  denied,  and  the  employer  not  relieved  from 
liability.     Sutton  v.  Wurster  Construction  Co.,  2  Cal.  I.  A.  C.  Dec.  705. 

7  9  Where  a  defendant  claims,  in  an  application  for  a  rehearing,  that  the 
Commission  had  never  secured  jurisdiction  over  his  person,  and  where  the 
record  shows  that  service  of  summons  was  made  upon  the  defendant  by 
mailing  a  copy  of  the  application  to  him,  with  a  notice  of  its  having  been 


I 


§  235  workmen's  compensation  808 

tendered  by  a  full  Commission, ®°  that  the  award  is  unreasonable,^^ 
that  incompetent  evidence  was  admitted,  where  there  was  ample 
competent  evidence,^"  that  individual  stockholders  of  the  defend- 
ant corporation  had  no  opportunity  to  defend  previously, ^^  that  one 

filed,  and  of  the  time  and  place  set  for  hearing,  in  accordance  with  the  rules 
of  the  Commission,  and  the  defendant  nowhere  urges  in  his  request  that  he 
has  been  prejudiced  or  prevented  from  defending  upon  the  merits  of  the 
proceeding  by  any  defect  in  the  service  of  summons  or  failure  to  receive  noti- 
fication of  the  pendency  of  the  proceeding,  the  request  for  rehearing  will  be 
denied.     Silva  v.  Common,  1  Cal.  I.  A.  C.  Dec.  644. 

8  0  The  fact  that  a  decision  is  not  rendered  by  a  full  Commission  is  no 
ground  for  the  granting  of  a  rehearing,  section  4  of  the  Act  specifically  pro- 
viding that  a  majority  of  the  Commission  is  sufficient  for  the  exercise  of  any 
power.    Mann  v.  Locke,  2  Cal.  I.  A.  C.  Dec.  415. 

81  Stevens  v.  Tittle,  2  Cal.  I.  A.  C.  Dec.  14G. 

Where,  following  an  award  by  the  Commission  against  the  employer  for 
the  reasonable  value  of  medical  treatment  furnished,  it  appears  that  the 
medical  treatment  received  by  the  applicant  was  in  fact  furnished  him  un- 
der a  hospital  agreement  free  from  expense  to  him  at  that  time,  this  fact 
does  not  entitle  the  employer  to  a  rehearing,  for  the  reason  that  the  award 
was  only  for  the  reasonable  value  of  such  services,  the  amount  thereafter  to 
be  approved  by  the  Commission,  and  the  Commission  would  thereafter  de- 
cline to  prove  any  claim  against  the  employer,  unless  he  failed  to  establish 
the  facts  above  mentioned.  I'eterseu  v.  I'ellasco,  2  Cal.  I.  A.  C.  Dec.  199. 
The  grounds  for  application  for  a  rehearing  on  an  award  for  compensation 
are  stated  in  the  Act  (section  82),  and  do  not  Include  the  ground  that  the 
award  was  unreasonable.  Section  83  does  allow  an  application  for  a  re- 
hearing upon  this  ground,  but  this  section  applies  only  to  safety  rules  and 
regulations,  and  does  not  apply  to  awards  granting  or  denying  compensation. 
Saunders  v.  Oxnard  Home  Telephone,  1  Cal.  I.  A.  C.  Dec.  636. 

82  Where  a  written  statement  elaborating  previous  oral  testimony,  with- 
out objection,  is  permitted  to  be  filed,  even  though  such  statement  may  be  ir- 
relevant and  hearsay,  and  not  admitting  of  cross-examination,  and  therefore 
inadmissible  in  a  court,  the  Commission  will  not  grant  a  rehearing  on  the 
ground  that  it  acted  in  excess  of  its  powers,  especially  when  there  is  ample 
evidence  otherwise.  Markt  v.  National  Brewing  Co.,  2  Cal.  I.  A.  C.  Dec. 
881. 

83  Where  a  suit  is  against  a  corporation,  and  the  corporation  has  defended 
by  its  duly  appointed  officers,  the  Commission  cannot  permit  Individual 
stockholders  to  be  heard  on  petition  for  rehearing  in  determining  controver- 
sies, and  it  is  no  ground  for  rehearing  for  them  to  set  up  the  claim  that 


I 


809  SETTLEMENT  OF  CONTROVERSIES  §  235 

party  is  dissatisfied  with  the  findings  of  a  referee  which  have  been 
accepted  by  the  Commission,^*  that  labor  unions  provided  counsel 
for  the  applicant,^^  or  that  labor  controversies  existed  at  the  place 
where  the  applicant  was  injured  and  resided.^''  In  default  of  some 
very  serious  mistake  as  to  the  facts,  a  rehearing  will  not  be  granted 
to  correct  a  finding  based  upon  a  stipulation  mutually  entered  into 
at  a  prior  regular  hearing.^'^ 

Where,  on  certiorari  to  review  an  award  of  the  Industrial  Acci- 
dent Commission,  it  does  not  appear  from  the  record  what  part  of 
the  award  was  given  for  disability  which  would  have  existed  after 
a  certain  date  on  account  of  the  original  injury,  or  how  much  was 
allowed  for  an  additional  injury,  it  is  essential  that  the  Commis- 

they  had  no  opportunity  to  defend  previously.  English  v.  Cain,  2  Cal.  I.  A. 
C.  Dec.  399. 

8  4  When  a  question  of  fact  is  submitted  to  be  determined  by  an  expert 
with  the  consent  of  the  parties,  then,  unless  circumstances  of  extraordinary 
character  arise,  the  Commission  will  accept  the  findings  made  by  such  ref- 
eree as  conclusive  upon  the  issue  referred  to  him,  and  will  not  grant  a  re- 
hearing because  of  dissatisfaction  of  either  party  with  the  finding  made. 
Estell  V.  Los  Angeles  Ice  &  Cold  Storage  Co.,  1  Cal.  I.  A.  O.  Dec.  501. 

8  5  It  is  not  ground  for  a  rehearing  that  the  injured  employe  was  furnished 
an  attorney  by  a  labor  union  to  aid  him  in  presenting  his  case.  The  fact 
that  the  labor  union  of  Stockton  provided  counsel  for  the  applicant  is  not 
only  not  worthy  of  condemnation,  but  it  is  a  system  which  the  Commission 
should  be  glad  to  have  the  labor  unions  of  California  follow  in  all  proper 
cases.     Schebrosky  v.  Morrison  &  O'Neil,  1  Cal.  I.  A.  C.  Dec.  401. 

86  A  rehearing  will  not  be  granted  for  the  purpose  of  having  the  witnesses 
all  brought  down  to  San  Francisco  and  there  re-examined,  because  of  un- 
fortunate labor  controversies  at  the  place  where  the  applicant  was  injured 
and  resides.  Taking  witnesses  from  Stockton  to  San  Francisco  would  not 
make  their  testimony  any  more  impartial  than  if  they  were  examined  at 
Stockton.     Schebrosky  v.  JNIorrison  &  O'Neil,  supra. 

8  7  Daly  V.  Mahoney  Bros.,  2  Cal.  I.  A.  C.  Dec.  34. 

The  objection  that  the  evidence  does  not  justify  the  findings  as  to  the  ex- 
tent of  the  disability  or  the  rating  thereof,  if  permanent,  cannot  be  raised 
where  both*  facts  are  determined  by  the  report  of  the  medical  referee  to 
whom  the  parties  have  stipulated,  and  by  whose  report  they  had  previously 
agreed  to  abide,  and  to  which  report  they  had  not  objected  for  30  days  sub- 
sequent to  its  admission  and  prior  to  the  award.    Id. 


§  235  workmen's  compensation  810 

sion  rehear  the  case  and  allow  only  for  such  disability  as  would  have 
existed  if  the  additional  injury,  the  slipping  of  a  broken  bone,  had 
\  not  occurred,  unless  they  should  find  that  it  naturally  resulted  from 
the  original  injury.^^  Where  the  evidence  warrants  it,  compensa- 
tion for  increased  disability  resulting  from  the  accident  may  be 
awarded  by  supplementary  order  after  notice,  without  the  neces- 
sity of  the  filing  of  a  verified  application  for  a  rehearing.  The  re- 
quest for  such  relief  is  not  in  the  nature  of  a  petition  for  a  rehear- 
ing, as  it  does  not  call  into  question  the  correctness  of  any  prior 
decision  by  the  Commission.  It  calls  instead  for  supplemental 
relief,  which  can  be  given  without  any  other  formality  than  notice 
and  an  opportunity  to  be  heard.®* 

The  Commission  will  reopen  a  case  if  a  disablement  clearly 
traceable  to  the  accident  shall,  within  two  hundred  and  forty-five 
weeks  from  the  accident,  become  apparent  and  compensable,  and 
application  made  to  modify  the  findings  and  award  to  conform  to 
the  new  condition.*"  Where  compensation  is  requested  upon  the 
ground  that  applicant's  disability  has  increased  since  the  former 
award  of  compensation,  such  request  is  not  a  new  proceeding  with- 
in the  period  of  limitations  of  the  Compensation  Act,  but  is  the 
exercise  of  the  power  conferred  upon  the  Commission  to  reopen  a 
case.*^ 

Where  an  insurer's  application  for  a  rehearing  does  not  complain 
of  the  Commission's  failure  to  credit  the  employer  with  a  sum 
paid  by  him  to  the  employe,  an  objection  to  the  award  based  on 
such  failure  is  waived.*^  A  specification  in  such  an  application 
that  the  evidence  did  not  authorize  a  finding  that  the  employe  was 

8  8  Pacific  Coast  Casualty  Co.  v.  Pillsbury,  Indus.  Ace.  Com.,  171  Cal.  319, 
153  Pac.  24. 

8  9  Salvatore  v.  New  England  Casualty  Co.,  2  Cal.  I.  A.  C.  Dec.  355. 

90  (Wk.  Comp.  Act,  §  82  [b])  Estell  v.  Los  Angeles  Ice  &  Cold. Storage  Co., 
1  Cal.  I.  A.  C.  Dec.  501. 

81  Salvatore  v.  New  England  Casualty  Co.,  2  Cal.  I.  A.  C.  Dec.  355. 

82  Pacific  Coast  Casualty  Co.  v.  Pillsbury,  171  Cal.  52,  151  Pac.  658. 


811  SETTLEMENT  OP  CONTROVERSIES  §  23C) 

disabled  in  whole  or  in  part  from  the  time  of  his  injury  to  a  date 
subsequent  to  the  hearing  before  the  referee  does  not  present  the 
objection  that  compensation  was  allowed  for  a  longer  period  than 
that  of  actual  disability  as  shown  by  the  evidence.''' 

When  a  rehearing  is  granted  to  receive  further  evidence,  the  is- 
sue must  be  clear  and  the  evidence  confined  strictly  thereto,^* 

§  236.     Proceedings  under  original  federal  Act 

Questions  of  fact,  or  mixed  questions  of  law  and  fact,  under  this 
Act,  are  not  to  be  determined  by  the  Attorney  General,  but  are 
committed  to  the  determination  of  the  Secretary.^ ^  The  question 
vv'hether  an  employe  is  an  artisan  or  laborer  is  one  coming  fairly 
within  the  discretion  of  the  Secretary  of  [Commerce  and]  Labor  to 
decide.  In  absence  of  any  showing  that  the  duties  performed  were 
not  those  of  a  laborer,  it  is  presumed  that  the  finding  of  the  Secre- 
tary is  correct.^"  In  the  absence  of  new  and  controlling  evidence 
that  the  settlement  was  made  upon  an  erroneous  or  incomplete 
showing  of  facts,  the  head  of  a  department  cannot  reopen  a  case 
that  has  been  disallowed  by  a  predecessor.^^  The  duty  of  deter- 
mining whether  a  claim  for  compensation  has  been  established  in- 
volves a  discretion  on  the  part  of  the  Secretary,  which  cannot  be 
delegated  to  another.^^  It  is  otherwise  where  such  evidence  is 
offered. °«  *      • 

9  3  (Wk.  Comp.  Act.  §  81,  subd.  c)  Western  Indemnity  Co.  v.  Pillsbury,  170 
Cal.  6S6,  151  Pac.  39S. 

94  De  Long  v.  Krobs,  1  Cal.  I.  A.  C.  Dec.  592. 

»5  In  re  Hutton  (Op.  Atty.  Gen.)  Op.  Sol.  Dept.  of  L.  (1915)  409. 

0  6  In  re  Adler  (Dec.  Comp.  of  Treas.)  Op.  Sol.  Dept.  of  L.  (1915)  67  (15 
Comp.  Dec.  845). 

9  7  In  re  Erickson,  Op.  Sol.  Dept.  of  L.  (1915)  774, 

98  In  re  Villafranca,  Op.  Sol.  Dept.  of  L.  (1915)  676. 

9  9  Claim  bad  been  disapproved  by  the  former  head  of  the  Department  of 
Commerce  and  Labor,  which  action  was  subsequently  sustained  by  the  head 
of  the  Department  of  Labor.  Upon  the  furnishing  of  new  evidence  the 
claim  was  reopened  and  allowed.  In  re  Kinney,  Op.  Sol.  Dept.  of  L.  (1915) 
768. 


I 


237  workmen's  compensation  812 

i 

I 

ARTICLE  VII  i 

PROCEEDINGS  IN  COURT 

i? 
Division  I. — Okiginal  Pboceedings 

Section 

237.  Jurisdiction  and  practice. 

238.  Verdict,  judgment,  and  findings. 

Division  II. — Review  of  Decision  of  Special  Tribunai. 

239.  Jurisdiction. 

240.  Jury  trial. 

241.  Appeal  and  revievp'. 

242.  Review  of  findings  and   decision. 

243.  Connecticut. 

244.  Washington. 

245.  California. 

Division  III. — Review  by  Higher  Court 

246.  Remedies. 

247.  Right  of  appeal. 

248.  Presentation  below  and  for  review. 

249.  Questions  reviewable. 

250.  Decision. 


Division  I. — OriginaIv  Prockt^dings 

§  237.     Jurisdiction  and  practice 

The  employer  must  plead  matters  of  defense  as  to  which  he  has 
the  burden  of  proof.^  The  petition  for  compensation  under  the  Ne- 
braska Act  should  set  out  the  injury  "in  its  extent  and  character," 
and  the  judgment  should  conform  thereto,  determining  plainly  the 
extent  and  character  of  the  injury,  whether  the  disability  is  total  or 
partial,  and  whether  temporary  or  permanent ;  it  should  state  def- 
initely the  time  for  which  periodical  payments  must  be  made.^ 

1  Hunter  v.  Colfax  Consol.  Coal  Co.   (Iowa)  157  N.  W.  145. 

2  Hanley  v.  Union  Stockyards  Co.  (Neb.)  158  N.  W.  939. 


813  SETTLEMENT  OF  CONTROVERSIES  §  237 

An  action  under  the  provision  of  the  New  Jersey  Act  that  in  case 
of  a  dispute  over  or  failure  to  agree  upon  a  claim  for  compensation 
either  party  may  submit  the  claim  to  the  judge  of  the  common  pleas 
of  such  county  as  would  have  jurisdiction  in  a  civil  action  cannot  be 
brought  in  the  Supreme  Court  of  New  York,  though  personal  serv- 
ice cannot  be  had  on  the  defendant  company  in  New  Jersey  by  rea- 
son of  removal  of  its  place  of  business  to  New  York,  the  state  of  its 
incorporation.^  A  proceeding  before  the  court  of  common  pleas  for 
the  computation  of  compensation  is  properly  set  on  foot  by  the 
person  to  whom  payment  is  to  be  made.*  The  small  cause  court 
has  no  jurisdiction  to  determine  the  liability  of  a  corporation  on  an 
agreement  executed  by  one  of  its  injured  employes,  under  an  agree- 
ment of  settlement,  based  on  this  Act.^ 

The  administration  of  the  Rhode  Island  Act  is  given  to  the  su- 
perior court.  Regardless  of  the  amount  involved,  original  jurisdic- 
tion of  petitions  brought  under  the  Act  is  conferred  upon  the  su- 
perior court.  There  are  several  provisions  in  the  Act  giving  to  pe- 
titions brought  under  it  precedence  over  other  causes  in  respect 
to  assignment  and  hearing;  and  it  is  provided  that,  without  the 
intervention  of  a  jury  or  a  Board  of  Arbitration,  the  evidence  shall 
be  presented  directly  to  a  justice  of  the  superior  court  for  his  deci- 
sion, the  justices  of  which  court  have  special  training  and  wide 
experience  as  triers  of  fact.  Further,  the  decision  of  said  justice  on 
questions  of  fact  is  conclusive.  In  these  provisions  appears  the 
intention  of  the  General  Assembly  to  avoid  the  delays  of  a  jury 
trial,  and  the  delays  of  appellate  proceedings  with  reference  to 
the  weight  and  sufficiency  of  evidence,  and  to  speed  the  cause  in 
the  superior  court  to  a  final  determination  of  the  facts  involved, 

3  (Wk.  Comp.  Law  N.  J.,  P.  L.  1911,  p.  141,  §  2,  par.  IS)  Liehmann  v.  Ramo 
Films,  Inc.,  92  Misc.  Rep.  418,  155  N.  Y.  Supp.  1032. 

4  (P.  L.  1911,  p.  139,  §  2,  pars.  12,  19)  McFarland  v.  Central  R.  Co.,  84  N.  J. 
Law,  435,  87  Atl.  144. 

G  (P.  L.  1911,  p.  134,  §  2,  par.  18)  Parro  v.  New  York,  S.  &  W.  R.  Co.,  85 
N.  J.  Law,  155,  88  Atl.  825. 


§  237  workmen's  compensation  814 

leaving  only  questions  of  law  and  equity  to  be  brought  up  on  ap- 
peal.® 

Hearings  under  the  Minnesota  Act  are  to  be  held  at  the  time 
and  place  fixed  by  the  judge,  regardless  of  the  time  and  place  of 
holding  the  regular  terms  of  court/  The  proceedings  being  sum- 
mary in  nature,  when  all  the  real  parties  in  interest  are  present 
and  have  been  heard,  the  court  must  decide  the  merits  of  the  con- 
troversy in  a  summary  manner.^  This  Act  provides  that  "if  the 
employer  shall  insure  to  his  employes  the  payment  of  the  compen- 
sations provided  by  part  2  of  this  Act,  in  a  corporation  or  associa- 
tion authorized  to  do  business  in  the  state  of  Minnesota  and  ap- 
proved by  the  insurance  commissioner  of  the  state  of  Minnesota, 
and  if  the  employer  shall  post  a  notice  or  notices  in  conspicu- 
ous places  about  his  place  of  employment,  stating  that  he  is  so 
insured  and  stating  by  whom  insured,  and  if  the  employer  shall 
further  file  copy  of  such  notice  with  the  labor  commissioner  of 
the  state  of  Alinnesota,  then,  and  in  such  case,  any  suits  or  actions 
brought  by  an  injured  employe  or  his  dependents  shall  be  brought 
directly  against  the  insurer,  and  the  employer  or  insured  shall  be 
released  from  any  further  liability."  ^  The  notice  herein  provided 
for  need  not  be  filed  at  the  time  of  the  accident,  but  is  efilective  if 
filed  any  time  before  the  beginning  of  the  compensation  suit.^*^ 

It  is  not  error  to  instruct  that  the  case  is  within  a  Compensation 
Act,  where  the  evidence  conclusively  shows  this  to  be  the  fact.^^ 

6  Jillson  V.  Ross  (R.  I.)  94  Atl.  717. 

7  (Gen.  St.  1913,  §§  8195-S2S0)  State  ex  rel.  Diamond  DrUling  Co.  v.  Dis- 
trict Court,  129  Minn.  423,  152  N.  W.  838. 

8  State  ex  rel.  London  &  Lancashire  Guarantee  &  Accident  Co.  of  Canada  v. 
District  Court  (Minn.)  158  N.  W.  615. 

9  Gen.  St.  1913,  §  8227. 

10  State  ex  rel.  London  &  Lancashire  Guarantee  &  Accident  Co.  of  Canada 
V.  District  Court  (Minn.)  15S  N.  W.  615. 

11  (Laws  1911,  c.  163)  Wheeler  v.  Contoocook  Mills  Corp.,  77  N,  H.  551,  94 
Atl.  265. 


815  SETTLEMENT  OF  CONTROVERSIES  §  238 

§  238.     Verdict,  judgment,  and  findings 

Error  in  the  amount  of  a  general  verdict  is  not  material,  where 
the  jury  also  make  necessary  findings  on  which  the  court  can  enter 
a  judgment  for  the  proper  amount.^^ 

The  provision  of  the  New  Jersey  Act  that  "within  thirty  days 
after  the  final  hearing  the  judge  of  the  court  of  common  pleas 
shall  file  his  determination"  is  directory  only.^^  Before  the  trial 
judge  can  properly  find  that  the  accident  arose  out  of  the  employ- 
ment, it  is  essential  that  there  be  some  fact  or  circumstance  estab- 
lished to  support  such  finding.^*  Error  in  making  an  award  for  a 
total  of  four  hundred  and  fifty  weeks  for  a  temporary  injury,  in 
violation  of  a  provision  of  this  Act  that  in  no  case  shall  the  total 
number  of  weekly  payments  be  more  than  four  hundred,  was  not 
rendered  harmless  by  the  reservation  of  right  to  a  modification  in 
case  of  an  earlier  termination  of  temporary  disability.^ ■'"'  The  judg- 
ment in  an  action  brought  by  an  infant,  by  his  next  friend,  to  re- 
cover compensation  as  an  employe  for  injuries  suffered  in  the  course 
of  his  employment,  binds  the  plaintiff,  to  the  extent  of  the  questions 
involved,  as  effectively  as  would  the  judgment  in  a  suit  for  dam- 
ages.^^ 

The  findings  of  fact  which  under  the  Rhode  Island  Act  should 
be  contained  in  the  final  decree  are  the  conclusions  of  the  justice 
as  to  the  issuable  or  ultimate  facts  of  the  controversy.  It  is  not 
intended  that  the  decree  shall  contain  a  statement  of  the  evidence 
or  the  findings  of  probative  facts  from  which  conclusions  are  to 
be  drawn  as  to  the  issuable  facts.'-'^ 

12  Girten  v.  National  Zinc  Co.,  98  Kan.  405,  15S  Pac.  33. 

13  Diskon  v.  Bubb,  88  N.  J.  Law,  513,  96  Atl.  660. 

14  Sctimoll  V.  Weisbrod  &  Hess  Brewing  Co.  (N.  J.)  97  Atl.  723. 

15  Birmingham  v.  Lehigh  &  Wilkesbarre  Coal  Co.  (N.  J.)  95  Atl.  242. 

16  (P.  L.  1911,  p.  134)  Hoey  v.  Superior  Laundry  Co.,  85  N.  J.  Law,  119,  88 
Atl.  823. 

17  (Wk.  Comp.  Act,  art.  3,  §  6)  Jillson  v.  Ross  (R.  I.)  94  Atl.  717;  Weber  v. 
American  Silk  Spinning  Co.  (R.  I.)  95  Atl.  603. 


§  238  workmen's  compensation  816 

In  Minnesota,  the  court  has  power  to  open  its  judgments  and 
correct  or  modify  them  upon  the  presentation  of  newly  discovered 
evidence,  when  manifest  wrong  has  been  done,  upon  substantially 
the  principle  upon  which  rests  its  inherent  power  to  grant  a  new 
trial.  The  statute  allowing  relief  within  a  year  applies. ^^  Where 
the  workman  sues  for  damages,  and  it  appears  at  the  trial,  after 
the  defendant's  liability  has  been  determined,  that  the  case  is  one 
coming  properly  under  the  Compensation  Act,  the  trial  court  should 
make  the  verdict  correspond  with  the  amount  allowable  under  that 
Act.  No  new  trial  is  necessary  if  the  liability  of  the  defendant  has 
been  determined. ^^  If  the  time  fixed  by  the  Nebraska  court  dur- 
ing which  periodical  payments  are  to  be  made  does  not  exceed  six 
months,  the  order  is  final ;  so  far  as  that  court  is  concerned  there 
is  no  power  to  modify  the  order.  But  if  the  time  for  the  continu- 
ance of  payments  exceeds  six  months,  then,  after  that  time  has 
elapsed,  either  party  may  show  to  the  court  that  conditions  have 
so  changed  that  a  change  in  the  order  is  necessary.  No  applica- 
tion of  any  nature  can  be  made  to  the  district  court  until  after  six 
months  have  elapsed. ^'^  Compensation  is  for  disability,  and  ends 
when  disability  ends;  but  the  court  must  find  whether  the  disabil- 
ity is  total  or  partial,  temporary  or  permanent.  A  judgment  that 
compensation  shall  continue  "during  the  period  of  compensation 
covered  by  the  statute"  is  too  indefinite  and  unsatisfactory.^^ 

18  Where  evidence  discovered  after  the  rendition  of  judgment,  if  true, 
showed  that  the  injuries,  which  resulted  in  the  fracture  of  a  limb,  were  mis- 
apprehended and  not  correctly  described  at  the  first  trial,  and  that  they  were 
more  serious  than  disclosed,  it  was  sufficient  to  warrant  a  reopening  of  the 
case.  (Gen.  St.  1913,  §  7786,  Rev.  Laws  1905,  §  4160)  State  ex  rel.  Klemer 
V.  District  Court  (Minn.)  158  N.  W.  825. 

19  Mahowald  v.  Thompson-Starrett  Co.  (Minn.)  158  N.  W.  913. 
2  0  Hanley  v.  Union  Stockyard  Co.  (Neb.)  158  N.  W.  939. 

21  Id. 


817  SETTLEMENT  OF   CONTROVERSIES  §   239 

Division  II. — Revii;w  op  Decision  op  SpEciaIv  Tribunai, 

§  239.     Jurisdiction 

The  manner  of  beginning  a  proceeding  for  compensation  in  the 
circuit  court  of  Illinois  is  not  substantially  different  from  an  appeal 
from  a  judgment  of  the  county  court  on  a  probated  claim,  or  an 
appeal  from  a  justice  of  the  peace,  and  it  is  almost  exactly  the 
procedure  provided  for  the  review  of  the  judgments  of  justices  of 
the  peace  by  writ  of  certiorari.  The  character  of  the  right,  the 
method  of  procedure,  and  the  judgment  rendered  are  all  of  the 
kind  recognized  by  the  common  law,  and  bring  the  case  within  the 
terms  of  the  statute  providing  for  appeals  to  the  Appellate  Court.^- 

That  the  Industrial  Accident  Commission  of  Maryland  sits  in 
Baltimore  does  not  authorize  the  superior  court  of  that  city  to  en- 
tertain jurisdiction  of  an  appeal  by  which  it  is  sought  to  review 
the  Commission's  findings.-^  Since  the  insurance  carrier  is  merely 
a  surety  for  the  employer,  and  the  employer  and  employe  are  the 
real  parties  in  interest,  the  court  which  has  jurisdiction  over  the 
place  where  the  accident  occurs  has  jurisdiction  of  appeals;  there 
is  no  concurrent  jurisdiction  of  the  court  where  the  insurance  car- 
rier has  its  office.^* 

The  provision  of  the  Wisconsin  Act  that  service  on  the  secretary 
of  the  Commission,  or  any  member  of  the  Commission,  shall  be  a 
completed  service,  does  not  dispense  with  the  necessity  of  serv- 
ice being  made  on  the  defendant.  The  defendant  must  be  served  as 
in  ordinary  cases. ^^ 

22  (Appellate  Court  Act,  §  8  [Hurd's  Rev.  St.  1913,  e.  37,  §  25];  Practice 
Act  [Hurd's  Rev.  St.  1911,  c.  110]  §  91;  Wk.  Comp.  Act,  Laws  1911,  p.  314) 
Christensen  v.  R.  W.  Bartelmann  Co.,  273  111.  346,  112  N.  E.  686. 

23  (Wk.  Comp.  Act,  §  7)   Brenner  v.  Brenner,  127  Md.  189,  96  Atl.  287. 

24  Id. 

2  5  (St.  §  2394 — 19)  Hammond-Chandler  Lumber  Co.  v.  Indus.  Com.  of  Wis. 
(1916,  Wis.)  158  N.  W.  292. 
HoN.CoMP. — 52 


§  239  workmen's  compensation  818 

Where  the  Compensation  Commission  of  New  York  is  in  error  in 
its  decision  adverse  to  plaintiff,  plaintiff's  remedy  is  by  appeal  to 
the  Appellate  Division  of  the  Supreme  Court.-° 

§  240.     Jury  trial 

Where  the  employer  pleads  that  the  injury  was  due  to  the  em- 
ploye's willful  negligence  or  intoxication,  a  jury  trial  may  be  de- 
manded thereon  in  lowa.^^  An  interlocutory  order,  made  at  the 
first  hearing,  awarding  a  jury  trial  on  appeal  from  an  award  of  the 
Industrial  Insurance  Department  of  Washington,  being  subject  to 
change  and  correction,  may  be  rescinded  at  the  final  hearing.^^  The 
provision  of  the  Connecticut  Act  that  the  acceptance  of  its  compen- 
sation provisions  shall  constitute  a  "mutual  renunciation  and  waiv- 
ej-  *  *  *  of  the  right  of  jury  trial  on  all  questions  affecting 
compensation"  does  not  refer  to  the  hearing  on  appeal  in  the  su- 
perior court,  but  includes  only  the  original  proceeding  before  the 
Commission.  It  was  inserted  to  guard  against  a  possible  consti- 
tutional objection  to  the  Act,  and  was  otherwise  unnecessary.^® 

§  241.     Appeal  and  review 

Since  a  party  appealing  from  a  ruling  of  the  Maryland  Indus- 
trial Accident  Commission  has  the  burden  of  showing  error  in  the 
decision  of  the  Commission,  which  must  be  taken  as  prima  facie 
correct,  he  has  a  right  to  open  and  close. ^"^    A  party  claiming  to  be 

2  6  (Wk.  Com  p.  Act,  §  23)  Naud  v.  King  Sewing  Mach.  Co.  (1916)  95  Misc. 
Rep.  676,  159  N.  Y.  Supp.  910. 

2  7  Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  157  N.  W.  145. 

2  8  Sinnes  v.  Daggett,  80  Wash.  673,  142  Pac.  5. 

2  9  (Wk.  Comp.  Act,  pt.  B,  §  1)  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93 
Atl.  245. 

30  (Wk.  Comp.  Act,  §  55)  American  Ice  Co.  v.  Fitzhugh  (1916)  128  Md.  382, 
97  Atl.  999. 


819  SETTLEMENT  OF  CONTROVERSIES  §  241 

aggrieved  by  the  action  of  the  Committee  of  Arbitration  of  Michi- 
gan must  first  seek  a  review  of  the  committee's  action  by  the  In- 
dustrial Accident  Board  before  resorting  to  the  court  in  certiorari 
proceedings  to  review  the  Committee's  award. ^^  On  a  petition  to 
review  an  order  of  the  Board  denying  an  application  to  stop  com- 
pensation, the  essentials  leading  up  to  the  award,  or  its  equivalent, 
are  generally  to  be  taken  as  res  judicata,  except  the  physical  con- 
dition of  the  injured  employe,  which  naturally  and  legally  remains 
open  to  inquiry. ^^ 

Where  the  employer  had  given  notice  of  acceptance  of  the  Wis- 
consin Act,  and  acted  throughout  as  though  it  were  subject  to  the 
Act,  it  could  not  be  heard  to  contend  on  appeal  that  there  had  been 
no  acceptance  of  the  Act,  and  that  the  Commission  had  no  juris- 
diction.^^ 

One  method  of  review  of  an  award  of  the  Industrial  Board  pro- 
vided for  by  the  Illinois  Act  is  to  sue  out  of  the  circuit  court  a  writ 
of  certiorari  to  the  Board.^'* 

The  New  York  Act  gives  a  right  of  appeal  only  to  an  employer 
privately  insured. ^^  Since  an  employer  insured  in  the  state  fund 
has  absolute  immunity  from  liability,  its  interest  is  too  remote  to 
authorize  an  appeal  from  an  award  of  the  Commission  for  death  of 
an  employe.^^  Where  the  defendant  in  a  hearing  before  the  Com.- 
mission  relies  on  the  defense  that  the  action  must  be  brought  by 
the  deceased's  personal  representative,  instead  of  by  his  dependent, 
and  the  Supreme  Court,  in  affirming  the  decision  of  the  Commis- 
si Schrewe  v.  New  York  Cent.  K.  R.  Co.  (1916,  Mich.)  158  N.  W.  337. 

32  gpooner  v.  Estate  of  P.  D.  Beckwith,  1S3  Mich.  323,  149  N.  W.  971.  There 
was  a  similar  holding  in  Mead  v,  Lockhart,  2  B.  W.  C.  C.  398. 

3  3  Milwaukee  Western  Fuel  Co,  v.  Indus.  Com.,  159  Wis.  635,  150  N.  W.  998, 

3  4  Munn  V.  Indus.  Board  (1916)  274  111.  70,  113  N.  E.  110. 

3  5  Crockett  v.  State  Insur.  Fund,  170  App.  Div.  122,  155  N.  T.  Supp.  692. 

36  (Wk.  Comp.  Act,  Consol.  Laws,  c.  67,  §§  53,  23)  Id. 


\ 


§  241  workmen's  compensation  820 

sion,  holds  that  the  dependent  was  a  proper  claimant,  it  may  never- 
theless refer  the  matter  back  to  the  Commission  for  a  further  hear- 
ing upon  the  status  of  the  employe  and  the  nature  of  his  employ- 
ment.^^ 

A  petition,  setting  forth  briefly  the  nature  of  the  questions  to  be 
decided,  may,  without  impropriety,  be  filed  in  the  superior  court 
in  Massachusetts,  though  the  Act  requires  only  a  bare  presenta- 
tion of  certified  copies  of  the  Industrial  Accident  Board's  order  or 
decision. ^^  On  appeal  by  the  insurer,  the  Board  may  set  out  the 
evidence,  or  the  substance  thereof;  but  it  is  not  essential  that  it 
do  so.^^  In  such  case,  the  Board  cannot  make  a  new  finding,  but 
can  merely  complete  the  record  according  to  the  facts  and  return 
it,  where  the  cause  is  remitted  to  the  Board  on  account  of  diminu- 
tion of  the  record.*" 

An  original  proceeding  in  review  of  an  award  of  the  California 
Commission  should  be  against  the  Commission  by  its  name,  "Indus- 
trial Accident  Commission,"  and  not  against  the  members  of  the 
Commission  individually.  The  person  or  persons  interested  in 
maintaining  the  award  also  should  be  joined.*^ 

Where,  on  an  application  for  a  writ  of  review  directed  to  the 
California  Commission  to  review  an  award  made  on  account  of  in- 
juries, the  petition  fails  to  sufficiently  show  that  there  was  not  in 
the  evidence  sufficient  support  for  the  finding  of  the  Commission 
that  the  accident  arose  out  of  and  happened  in  the  course  of  the 
employment  of  the  injured  person  by  the  petitioner,  the  writ  will 
not  issue  on  the  ground  that  the  evidence  shows  that  the  injuries 

3  7  Dearborn  v.  Peugeot,  170  App.  Div.  93,  155  N.  Y.  Supp.  769. 

3  8  (Wk.  Comp.  Act,  pt.  3,  §  11,  as  amended  by  St.  1912,  c.  571,  §  14)  In  re 
American  Mut.  Liab.  Ins.  Co.,  215  Mass.  480,  102  N.  E.  693,  Ann.  Cas.  1914D, 
372. 

3  9  In  re  Dolierty,  222  Mass.  98,  109  N.  E.  887. 

40  Id. 

41  Carstens  v.  Pillsbury  (1916,  Cal.)  158  Pac.  218. 


821  SETTLEMENT  OF  CONTROVERSIES  §  242 

were  received  while  such  person  was  employed  as  an  independent 
contractor. *- 

An  appeal  by  the  Wisconsin  Industrial  Commission  will  be  dis- 
missed, where  it  appears  that  it  is  not  prejudiced  by  the  judg-ment, 
and  that  the  judgment  is  one  sought  by  but  denied  to  it,  and  grant- 
ed on  motion  of  its  codefendant.*^ 

§  242.     Review  of  findings  and  decision 

Where  a  Workmen's  Compensation  Act  does  not  expressly  give 
a  retrial,  it  will  be  construed  to  intend  to  the  contrary.**  An  award 
made  by  consent  of  appellants  will  not  be  disturbed  on  appeal.*^ 
As  a  rule  the  findings  of  fact  *"  made  by  a  Board  or  Commission  are 

42  Garratt-Callahan  Co.  v.  Indus.  Ace.  Com.  of  the  State  of  Cal.,  2  Cal. 
I.  A.  C.  Dec.  953,  171  Cal.  334,  153  Pac.  239. 

4  3  Hammond-Chandler  Lumber  Co.  v.  Indus.  Com.  of  Wis.  (1916,  Wis.)  158 
N.  W.  292. 

44  Appeal  of  Hotel  Bond  Co.,  89  Conn.  143,  93  Atl.  245 ;  Pigeon's  Case,  21G 
]Mass.  51,  52,  102  N.  E.  932,  Ann.  Cas.  1915A,  737 ;  Donovan's  Case,  217  Mass. 
76,  79,  104  N.  E.  431,  Ann.  Cas.  1915C,  778;  Herrick's  Case,  217  Mass.  111. 
112,  104  N.  E.  432;  Bentley's  Case,  217  Mass.  79,  80,  104  N.  E.  432;  Main 
Colliery  Co.  v.  Davies,  16  T.  L.  R.  460,  2  B.  W.  C.  C.  108. 

On  appeal  from  a  Compensation  Commissioner,  the  superior  court  cannot 
retry  the  facts,  but  can  merely  inquire  into  the  facts  to  determine  whether 
or  not  the  finding  and  award  were  authorized,  or  so  unreasonable  as  to  jus- 
tify interference  by  the  court.  Kennerson  v.  Thames  Towboat  Co.,  89  Conn. 
367,  94  Atl.  372,  L.  R.  A.  1916A,  436 ;   Hotel  Bond  Co.  Appeal,  supra. 

4  5  Cunningham  v.  Buffalo,  C.  &  B.  Rollmg  Mills,  155  N.  Y.  Supp.  797. 

46  "Findings  of  fact"  mean  findings  of  ultimate,  rather  than  evidentiary, 
facts.  Northwestern  Iron  Co.  v.  Indus.  Com.  of  Wis.,  154  Wis.  97,  142  N.  W. 
271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B,  877 ;  Briere  v.  Taylor,  126  Wis.  347, 
105  N.  W.  817;  Chippewa  B.  Co.  v.  Durand,  122  Wis.  85,  99  N.  W.  603,  106 
Am.  St.  Rep.  931 ;  McDougald  v.  New  Richmond  R.  M.  Co.,  125  Wis.  121,  103 
N.  W.  244;  Travelers'  Ins.  Co.  v.  Hallauer,  131  Wis.  371,  111  N.  W.  527; 
Cole  V.  Cole,  27  Wis.  531. 

An  award  made  to  an  employ§  after  an  examination  and  the  hearing  of 
expert  testimony  was  a  "decision  of  a  question  of  fact,"  which  is  not  review- 
able. (Wk.  Comp.  Act,  Consol.  Laws,  c.  67,  §  2,  gr.  21,  §  20)  Goldstein  v.  Cen- 
tre Iron  Works,  167  App.  Div.  526,  153  N.  Y.  Supp.  224. 


§  242  workmen's  compensation  822 

conclusive,*''   where   they   are   supported  by   any   evidence/^   only 

4  7  "We  are  of  the  opinion  that  the  word  'conclusive,'  contained  in  the  pro- 
vision of  the  Act  now  under  consideration,  should  have  the  construction  usu- 
ally given  it  when  the  word  is  used  with  reference  to  appellate  proceedings. 
It  is  undoubtedly  so  used  in  this  provision,  and  has  reference  to  the  possi- 
bility of  a  claim  of  appeal  to  this  court.  By  its  use  the  General  Assembly  in- 
tended to  shut  off  any  further  proceedings  with  regard  to  the  facts  of  the 
case,  and  to  give  to  the  superior  court  the  exclusive  final  jurisdiction  to  de- 
termine all  such  questions."  Jillson  v.  Ross  (R.  I.)  94  Atl.  717;  Blanding  v. 
Sayles,  21  R.  I,  211,  42  Atl.  S72,  23  R.  I.  226,  49  Atl.  992. 

Findings  of  the  Committee  of  Arbitration  as  to  the  amount  of  compensa- 
tion will  not  be  considered  on  appeal,  where  they  have  been  overruled  by  the 
Industrial  Accident  Board.    In  re  Septimo,  219  Mass.  430,  107  N.  E.  63. 

4  8  Smith  v.  Indus.  Ace.  Com.  of  Cal.,  2  Cal.  I.  A.  C.  Dec.  439,  26  Cal.  App. 
560,  147  Pac.  600 ;  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac. 
S98 ;  Cardoza  v.  Pacific  Gas  &  Electric  Co.,  1  Cal.  I.  A.  C.  Dec.  435 ;  Great 
Western  Power  Co.  v.  Pillsbury,  170  Cal.  180,  149  Pac.  35;  (a  determination 
drawn  from  conflicting  testimony  that  the  employe's  condition  at  time  of 
hearing  resulted  from  the  accident)  Southwestern  Surety  Ins.  Co.  v.  Pills- 
bury (Cal.)  158  Pac.  762;  Larke  v.  John  Hancock  Mut.  Life  Insur.  Co.  (1916), 
90  Conn.  303,  97  Atl.  320 ;  Searles  v.  Connecticut  Co.,  1  Conn.  Comp.  Dec.  97 
(affirmed  by  superior  court  on  appeal) ;  (Wk.  Comp.  Act  1913,  §  19,  par.  "f") 
Victor  Chemical  Works  v.  Indus.  Board  of  111.  (1916)  274  111.  11,  113  N.  E. 
173;  (determination  as  to  the  duration  of  incapacity)  Gorrell  v.  Battelle,  93 
Kan.  370,  144  Pac.  244;  In  re  Fierro's  Case,  223  Mass.  378,  111  N.  E.  957; 
In  re  Doherty,  222  Mass.  98,  109  N.  E.  887;  In  re  Von  Ette,  223  Mass.  56, 
111  N.  E.  696;  Lemieux  v.  Contractors'  Mut.  Liab.  Ins.  Co.,  223  Mass.  346, 
111  N.  E.  782 ;  In  re  Herrick,  217  Mass.  Ill,  104  N.  E.  432 ;  In  re  Sponaski, 
220  Mass.  526,  108  N.  E.  466,  L.  R.  A.  1916A,  333;  In  re  Diaz,  217  Mass. 
36,  104  N.  E.  384 ;  In  re  McPhee,  222  Mass.  1,  109  N.  E.  633 ;  Pigeon's  Case, 
216  Mass.  51,  102  N.  E.  932,  Ann.  Cas.  1915A,  737;  Lannigan  v.  Lannigan, 
222  Mass.  198,  110  N.  E.  285 ;  (finding  on  whether  a  wife  left  her  husband  for 
justifiable  cause,  St.  1914,  c.  708,  §  3,  cl.  "a")  In  re  Newman's  Case,  222  Mass. 
563,  111  N.  E.  359,  L.  R.  A.  1916C,  1145 ;  (findings  of  fact  of  the  Industrial 
Accident  Board  on  its  review  of  the  Arbitration  Committee's  report)  In  re 
Donovan,  217  Mass.  76,  104  N.  E.  431,  Ann.  Cas.  1915C,  778 ;  In  re  Septimo, 
219  Mass.  430,  107  N.  E.  63 ;  In  re  Meley,  219  Mass.  136,  106  N.  E.  559 ;  (find- 
ing of  the  Board  that  the  employ^  received  lead  poisoning  as  a  personal  in- 
jury arising  out  of  and  in  the  course  of  his  employment)  In  re  Doherty  (1915) 
222  Mass.  98,  109  N.  E.  SS7 ;  (finding  that  incapacity  for  work  is  total)  Bruce 
V.  Taylor  &  Maliskey  (1916,  Mich.)  15S  N.  W.  153;  Bell  v.  Hayes-Ionia  Co. 
(Mich.)  158  N.  W.  179;  Kennelly  v.  Stearns  Salt  &  Lumber  Co.  (Mich.)  157 
N.  W.  378 ;    Redfield  v.  Insur.  Co.,  183  Mich.  633,  150  N.  W.  362 ;    Bayne  v. 


823  SETTLEMENT  OF  CONTROVERSIES  §  242 

Riverside  Storage  &  Cartage  Co.,  181  Mich.  378,  148  N.  W.  412;  La  Vecli  v, 
Parke,  Davis  &  Co.  (Mich.)  157  N.  W.  72;  Linsteadt  v.  Louis  Sands  Salt  & 
Lumber  Co.  (Mich.)  157  N.  W.  64;  Bischoft  v.  American  Car  &  Foundry  Co. 
(Mich.)  157  N.  W.  34;  (finding  on  conflicting  evidence  that  employe's  injury 
was  received  while  in  the  employment,  Pub.  Acts  Extra  Sess.  1912,  No.  10, 
pt.  3,  §  12)  Grove  v.  Michigan  Paper  Co.,  184  Mich.  449,  151  N.  W.  554 ;  (find- 
ing as  to  whether  the  injury  arose  by  reason  of  intentional  and  willful  mis- 
conduct of  the  workman)  Rayner  v.  Sligh  Furniture  Co.,  ISO  Mich.  IGS,  145 
N.  W.  665,  L.  R.  A.  1916A,  22,  Ann.  Cas.  1916A,  3S6;  Remlow  v.  Moon  Lake 
Ice  Co.  (Mich.)  158  N.  W.  1027 ;  Rumboll  v.  Nunnery  Colliery  Co.,  SO  L.  T.  42, 
1  W.  C.  C.  28;  (Wk.  Comp.  Act,  §  20)  Rhyner  v.  Hueber  Bldg.  Co.,  171  App. 
Div.  56,  156  N.  Y.  Supp.  903 ;  Kingsley  v.  Donovan,  169  App.  Div.  828,  155  N. 
Y.  Supp.  801;  Collins  v.  Brooklyn  Union  Gas  Co.,  171  App.  Div.  381,  156  N. 
Y.  Supp.  957;  Plass  v.  New  England  Ry.  Co.,  169  App.  Div.  826,  355  N.  Y. 
Supp.  854;  In  re  Board  of  Water  Supply,  170  App.  Div.  107,  155  N,  Y.  Supp. 
753 ;  (finding  that  the  attorney  for  the  employer  and  insurer  had  not  exceeded 
his  authority  in  consenting  that  a  certain  award  should  be  made)  Cunningham 
V.  Buffalo  C.  &  B.  Rolling  Mills,  155  N.  Y.  Supp.  797 ;  (finding  of  dependency, 
Wk.  Comp.  Act,  §  20)  Hendricks  v.  Seeman  Bros.,  155  N.  Y.  Supp.  638;  (find- 
ings that  the  employe's  injuries  were  accidental  and  received  in  the  course  of 
his  employment,  Wk.  Comp.  Law,  §§  20,  21)  In  re  Powely,  1G9  App.  Div.  170, 
154  N.  Y.  Supp.  426;  (Wk.  Comp.  Law,  §  20)  In  re  State  Workmen's  Com- 
pensation Com'n,  218  N.  Y.  59,  112  N.  E.  571;  Tirre  v.  Bush  Terminal  Co.,  172 
App.  Div,  386,  158  N.  Y.  Supp.  883 ;  (finding  that  the  employer  was  not  prej- 
udiced by  the  claimant's  failure  to  give  the  statutory  notice  within  10  days 
after  disability,  the  notice  having  been  given  2%  months  after  the  accident) 
Marinaccio  v.  Flinn-O'Rourke  Co.,  Inc.,  172  App.  Div.  378,  158  N.  Y.  Supp. 
715 ;  (findings  supported  by  any  reasonable  view  of  the  evidence  or  by  any 
fair  inferences  deducible  therefrom,  Wk.  Comp.  Law,  Laws  1913,  c.  599)  First 
Nat.  Bank  v.  Indus.  Com.,  101  Wis.  526,  154  N.  W.  847;  Milwaukee  W.  F.  Co. 
V.  Indus.  Com.,  159  Wis.  635,  150  N.  W.  99S ;  Eagle  Chemical  Co.  v.  Nowak, 
161  Wis.  446,  154  N.  W.  636 ;  Oldenberg  v.  Indus.  Com.,  159  Wis.  333,  150  N. 
W.  444 ;  Milwaukee  Coke  &  Gas  Co.  v.  Indus.  Com.,  160  Wis.  247,  151  N.  W. 
245;  Nekoosa-Edwards  Paper  Co.  v.  Indus.  Com.,  154  Wis.  105,  141  N.  W.  1013, 
L.  R.  A.  1916A,  348,  Ann.  Cas.  1915B,  995;  Northwestern  Iron  Co.  v,  Indus. 
Com.  of  Wis.,  154  Wis.  97,  142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B, 
877;  Heileman  Brewing  Co.  v.  Schultz,  161  Wis.  46,  152  N.  W.  446;  (finding 
that  death  of  the  workman  was  not  due  to  any  hazard  peculiar  to  his  employ- 
ment and  different  from  the  hazard  incident  to  any  other  outdoor  work  during 
a  thunderstorm,  the  worlcman  having  been  struclc  by  lighting,  while  working 
on  a  dam)  Hoenig  v.  Indus.  Com.  of  Wis.,  159  W(is.  646,  150  N.  W.  996,  D.  R. 
A.  1916A,  339 ;  City  of  Milwaukee  v.  Indus.  Com.,  160  Wis.  238,  151  N.  W.  247. 
A  finding  on  conflicting  evidence  as  to  willful  misconduct  will  not  be  re- 
versed by  the  court  on  writ  of  error.    Great  Western  Power  Co.  v.  Pillsbury 


§  242  workmen's  compensation  824 

(1915)  170  Cal.  180,  149  Pac.  35.  Where  the  employer  insisted  that  deck 
hands  who  had  no  duty  to  perform  during  the  trip  were  required  by  a  well- 
known  rule  to  remain  in  the  cabin  during  the  voyage,  but  it  was  not  shown 
that  the  deceased  had  ever  been  told  of  any  such  prohibition,  and  it  appeared 
that  on  the  day  of  the  accident  several  of  the  hands  were  playing  cards  on 
the  deck,  and  that  the  officer  in  command  joined  in  the  game,  the  finding 
that  the  employe  was  not  violating  any  specific  rule  of  his  employer  could 
not  be  disturbed.  W.  R.  Rideout  Co.  v.  Pillsbury  (Cal.)  159  Pac.  435.  The 
determination  of  the  percentage  of  disability  is  a  conclusion  of  fact,  not  sub- 
ject to  review  by  the  courts  unless  palpably  contrary  to  the  undisputed  evi- 
dence. Frankfort  General  Ins.  Co.  v.  Pillsbury  (Cal.)  159  Pac.  150.  The 
award  is  final  unless  some  substantial  error  of  law  is  found  on  appeal.  (Wk. 
Comp.  Act,  §  26)  Appeal  of  Hotel  Bond  Co.,  S9  Conn.  143,  93  Atl.  245;  Gray's 
Appeal,  80  Conn.  248,  251,  67  Atl.  891;  Brown  v.  Clark,  SO  Conn.  419,  423,  OS 
Atl.  1001.  The  determination  of  the  truth  from  conflicting  evidence  and  of 
the  credibility  of  witnesses  was  for  the  Commissioner  as  the  trier  of  the  facts. 
Larke  v.  John  Hancock  Mut.  Life  Ins.  Co.  (1916)  90  Conn.  303,  97  Atl.  320. 

The  decision  of  the  Industrial  Board,  where  it  has  acted  within  its  juris- 
diction, is  conclusive  on  the  circuit  court.  ISIunn  v.  Indus.  Board  (1916)  274 
111.  70,  113  N.  E.  110.  A  finding  of  the  Board  that  an  employer,  through  its 
foreman  and  timekeeper,  knew  of  the  injury,  was  conclusive,  unless  it  could 
be  said  that  neither  the  foreman  nor  the  timekeeper  was  an  "agent."  (Wk. 
Comp.  Act,  pt.  2,  §  IS)  In  re  Bloom,  222  Mass.  434,  111  N.  E.  45.  The  Board's 
finding  that  the  employe's  death  was  proximately  caused  by  his  injury  must 
stand,  when  supported  by  any  evidence,  unless  wrong  as  a  matter  of  law.  In 
re  Burns,  218  Mass.  8,  105  N.  E.  601,  Ann.  Cas.  1916A,  7S7.  A  fiinding  of  the 
Board  against  the  claimant's  contention  that  the  injury  was  due  to  serious 
and  willful  misconduct  of  the  employer,  requiring  that  the  compensation  be 
doubled,  is  final  when  supported  by  any  evidence.  Id.  Findings  of  fact  made 
by  the  Industrial  Accident  Board,  after  a  hearing  of  the  parties,  on  the  state- 
ments of  counsel  and  the  evidence  before  the  full  Board,  are  not  open  to 
revision  on  appeal.  In  re  Bentley,  217  Mass.  79,  104  N.  E.  432.  A  finding  in 
accordance  with  the  report  of  the  Arbitration  Committee  that  the  employe's 
act  was  not  "serious  and  willful  misconduct"  could  not  be  disturbed  on  ap- 
peal, when  supported  by  any  evidence.  In  re  Nickerson,  21S  Mass.  158,  105 
N.  E.  604,  Ann.  Cas.  1916A,  790.  Findings  of  fact  in  an  award  made  by  the 
Board  are  conclusive,  if  there  is  any  evidence  to  support  them,  and  are  just 
as  conclusive  as  the  findings  of  a  judge  or  the  verdict  of  a  jury.  In  re  Sander- 
son's Case  (Mass.)  113  N.  E.  355.  The  case  will  not  be  sent  back  after  death 
of  the  dependent  in  order  that  a  motion  may  be  made  to  the  Board  for  an 
award  to  be  made  to  some  other  than  the  dependent,  where  it  does  not  appear 
that  there  was  any  one  to  whom  an  award  should  have  been  made  at  the  time 
the  award  was  made  to  the  dependent.  (St.  1911,  c.  751,  pt.  3,  §  12,  as 
amended  by  St.  1914,  c.  70S,  §  11)  In  re  Murphy  (Mass.)  113  N.  E.  283. 

The   Industrial   Board's  findings  are  conclusive,  in  the  absence  of  fraud, 


825  SETTLEMENT  OF  CONTROVERSIES  §  242 

when  they  are  supported  by  evidence  or  inferences  deducible  therefrom.  Papi- 
naw  V.  Grand  Trunk  Ry.  Co.  (Mich.)  155  N.  W.  545.  A  finding  of  the  Indus- 
trial Accident  Board  that  an  employe's  injured  condition  resulted  from  injury, 
and  not  from  senile  cataract,  could  not  be  disturbed,  where  the  court  could 
not  say  from  the  entire  record  that  the  finding  was  erroneous.  Spooner  v. 
Estate  of  P.  D.  Beckwith,  183  Mich.  323,  149  N.  W.  971.  Where  a  workman 
was  killed  from  falling  a  few  days  after  returning  to  work  following  his 
recovery  from  a  prior  fall,  medical  testimony  that  his  fatal  fall  was  due  to 
a  concussion  of  the  brain  received  on  the  first  fall  was  evidence  competent  in 
support  of  a  finding  of  the  Industrial  Board  for  claimant,  and  hence  such 
finding  was  conclusive.  Deem  v.  Kalamazoo  Paper  Co.  (Mich.)  155  N.  W.  5S4. 
A  finding  of  the  Board,  based  on  opinion  evidence,  that  the  direct  cause  of  the 
pneumonia  causing  the  workman's  death  was  the  hurt  or  strain  of  his  back, 
could  not  be  disturbed,  where  the  evidence  favorable  to  the  claimant  was  not 
wholly  improbable.  Bayne  v.  Riverside  Storage  &  Cartage  Co.,  supra.  The 
question  presented  on  certiorari  to  review  a  finding  of  the  Industrial  Accident 
Board  is  whether  there  is  any  evidence  in  the  record  to  support  the  Board's 
findings.    Kennelly  v.  Stearns  Salt  «&;  Lumber  Co.,  supra. 

A  computation  by  the  Commission  of  the  amount  of  an  award  is  conclusive, 
where  there  is  evidence  as  to  the  amount  of  decedent's  earnings.  (Wk.  Comp. 
Act,  Consol.  Laws,  c.  67,  §  20)  Fairchild  v.  Pennsylvania  R.  R.  Co.,  170  App. 
Div.  135,  155  N.  Y.  Supp.  751.  A  decision  of  the  Commission  that  the  deceased 
workman's  mother  was  dependent  on  him  could  not  be  disturbed,  where  it  was 
supported  by  evidence.  (Wk.  Comp.  Laws,  &  20)  Rhyner  v.  Hueber  Bldg.  Co., 
supra.  A  finding  of  the  Commission  that  the  workman's  loss  of  his  fingers  iu 
the  chain  guard  of  his  motorcycle,  which  was  used  occasionally  in  the  em- 
ployer's business  and  without  objection  was  cared  for  during  working  hours, 
came  within  the  provision  of  the  Act,  could  not  be  disturbed,  where  it  was 
supported  by  substantial  evidence.  (Wk.  Comp.  Act,  §  21)  Kingsley  v.  Dono- 
van, supra.  A  finding  that  the  workman  received  a  personal  injury  by  an 
accident  arising  out  of  his  employment  could  not  be  disturbed,  in  the  absence 
of  fraud,  where  it  was  supported  by  evidence.  Carroll  v.  What  Cheer  Stables 
Co.  (R.  I.)  96  Atl.  208. 

It  is  only  when  the  facts  are  undisputed,  and  no  conflicting  inference  re- 
specting the  ultimate  fact  can  be  drawn  therefrom,  that  the  question  becomes 
one  of  law.  Northwestern  Iron  Co.  v.  Indus.  Com.  of  Wis.,  154  Wis.  97,  142 
N.  W.  271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B,  877;  Ennis  v.  Hanna  D.  Co., 
148  Wis.  655,  134  N.  W.  1051.  In  the  absence  of  fraud,  the  findings  of  fact 
made  by  the  Industrial  Commission  are  conclusive,  and  its  order  or  award 
can  be  set  aside  only  upon  the  ground  (1)  that  it  acted  without  or  in  excess 
of  its  powers;  (2)  that  it  was  procured  by  fraud;  or  (3)  that  its  findings 
of  fact  do  not  support  the  order  or  award.  City  of  Milwaukee  v.  Indus.  Com., 
160  Wis.  238,  151  N.  W.  247.  It  was  not  the  scheme  of  the  Act  to  make  the 
court  a  reviewer  of  facts.     Its  oflice  is  to  relieve  against  fraud,  to  keep  the 


§  242  workmen's  compensation  826 

questions  of  law  being  reviewable;  *^  but  findings  on  any  jurisdic- 
tional fact  will  be  reviewed  and  annulled,  when  without  the  support 
of  substantial  evidence. ^°     A  decision  or  finding  will  be  reversed, 

Commission  within  its  jurisdictional  bounds,  and  to  correct  an  award  not 
supported  by  the  facts  found.    Id. 

49  (Finding  whether  the  workman  was  guilty  of  willful  misconduct  when 
he  was  killed)  Fidelity  &  Deposit  Co.  of  Md.  v.  Indus.  Ace.  Com.,  171  Cal.  728, 
154  Pac.  834;  Head  v.  Head  Drilling  Co.,  Fidelity  &  Deposit  Co.  of  Md.  v. 
Indus.  Ace.  Com.,  2  Cal.  I.  A.  C.  Dec.  973,  171  Cal.  728.  154  Pac.  834 ;  (Laws 
1913,  p.  335)  Courter  v.  Simpson  Construction  Co.,  264  111.  488,  106  N.  E.  350; 
Munn  V.  Indus.  Board  (191G)  274  111.  70,  113  X.  E.  110;  Victor  Chemical  Works 
V.  Indus.  Board  of  111.  (1916)  274  111.  11,  113  N.  E.  173 ;  Bell  v.  Hayes-Ionia 
Co.  (Mich.)  158  N.  W.  179;  (Wk.  Comp.  Act,  §  20)  Howard  v.  Ludwig,  171 
N.  Y.  507,  64  N.  E.  172 ;  Kellogg  v.  Church  Charity  Foundation,  203  N.  Y.  191, 
96  N.  E.  406,  38  L.  R.  A.  (N.  S.)  481,  Ann.  Cas.  1913 A,  883;  In  re  State  Work- 
men's Compensation  Coram'n ;  Dale  v.  Saunders  Bros.,  218  N.  Y.  59,  112  N.  E. 
571,  affirming  171  App.  Div.  528,  157  N.  Y.  Supp.  1002. 

A  finding  of  the  Commission,  upon  an  application  for  compensation,  that 
the  applicant  was  at  the  specific  time  of  his  injury  employed  in  interstate 
commerce,  and  that  the  particular  service  being  rendered  by  him  at  the  time 
of  his  injury  was  a  service  in  such  interstate  commerce,  is  more  in  the  nature 
of  a  conclusion  of  law,  and  is  reviewable  on  certiorari.  Smith  v.  Indus.  Ace. 
Com.  of  Cal.,  2  Cal.  I.  A.  C.  Dee.  439,  26  Cal.  App.  5G0,  147  Pac.  600. 

"Under  its  supervisory  power  over  the  Public  Service  Commission,  re- 
specting its  administration  of  the  Workmen's  Compensation  Act,  this  court 
takes  cognizance  of  questions  of  law  only."  (Code  1913,  c.  15p,  §§  1-55  [sees. 
657-711])  Poccardi  v.  Public  Service  Commission,  75  W.  Va.  542,  84  S.  E.  242, 
li.  R.  A.  1916A,  299. 

5  0  Employers'  Assur.  Corp.,  Ltd.,  v.  Cal.  Indus.  Ace.  Com.,  2  Cal.  I.  A.  C. 
Dee.  452,  170  Cal.  800,  151  Pac.  424;  (finding  whether  there  is  any  evidence 
that  the  injury  occurred  in  the  course  of  the  employment)  Western  Indem- 
nity Co  V.  Pillsbury,  170  Cal.  686,  151  Pac.  398.  This  case  follows  Great 
Western  Power  Co.  v.  Pillsbury,  170  Cal.  ISO,  149  Pac.  35,  as  to  the  extent 
to  which  the  court  may,  on  certiorari,  inquire  into  the  sufficiency  of  the  evi- 
dence to  sustain  findings  of  jurisdictional  facts  underlying  the  power  of  the 
Commission  to  award  compensation,  and  holding  that  there  Is  no  substantial 
difference  between  the  Eoseberry  Act,  then  in  force,  and  the  present  Boyn- 
ton  Act,  as  to  this  phase  of  the  case. 

An  award  which  is  void,  because  made  without  proof  that  the  injury  re- 
sulted from  accident,  must  be  annulled  on  certiorari  as  an  act  in  excess  of 
the  jurisdiction  of  the  Commission.  Englebretson  v.  Indus.  Ace.  Com.,  170 
Cal.  793,  151  Pac.  421.     Where  the  jurisdiction  of  the  Commission  depends 


827  SETTLEMENT  OP  CONTROVERSIES  §  242 

where  it  is  on  a  matter  not  within  the  tribunal's  jurisdiction/^ 
or  is  based  solely  on  hearsay,  or  other  improper  or  wholly  insuffi- 

upon  an  ultimate  fact  found,  such  as  that  of  death  by  violence,  the  Supreme 
Court  on  review  may  determine  whether  the  evidence  is  sufficient  to  .iustify 
the  finding  of  death,  and  may  nullify  the  award  where  it  is  not  sustained. 
Western  Grain  &  Sugar  Products  Co.  v.  Pillsbury  (Cal.)  159  Pac.  423. 

When  the  finding  and  award  of  the  Commissioner  appealed  from  are  un- 
authorized in  law,  irregular,  or  informal,  or  based  upon  a  misconception  of 
the  law,  or  of  the  powers  or  duties  of  the  administrative  tribunal,  or  are  so 
unreasonable  as  to  justify  judicial  interference,  the  award  may  be  set  aside. 
Appeal  of  Hotel  Bond  Co.,  S9  Conn.  143,  93  Atl.  245 ;  Norton  v.  Shore  Line 
Electric  R.  Co.,  84  Conn.  24,  35,  78  Atl.  587.  In  Benoit  v.-  Bushnell,  1  Conn. 
Comp.  Dec.  172  (superior  court  reversing  the  Commissioner),  it  was  held 
that,  where  the  evidence  showed  that  the  claimant  did  not  see  a  doctor  for 
a  week  after  the  injury,  and  the  defendant,  though  knowing  of  the  injury, 
did  not  know  that  it  was  claimed  to  have  been  received  in  his  employment, 
and  no  claim  for  compensation  was  made  for  three  months,  a  finding  that  he 
had  actual  knowledge,  and  was  not  prejudiced  by  lack  of  notice,  is  not  sus- 
tained by  the  evidence,  and  will  be  set  aside  on  appeal. 

Where  there  are  no  facts  and  the  decision  of  the  Commission  is  arbitrarily 
unfair  and  unreasonable,  a  question  of  law  arises,  and  the  court  may  right 
the  wrong.  Rhyuer  v.  Hueber  Bldg.  Co.,  171  App.  Div.  56,  156  N.  Y.  Supp. 
903.  Where  the  Commission's  findings  are  without  evidence,  and  in  direct 
conflict  with  the  undisputed  facts  and  all  reasonable  inferences  which  may 
be  drawn  from  them,  its  determination  may  be  reversed  as  an  error  of  law. 
Gardouer  v.  Horseheads  Const.   Co.,  171  App.  Div.  66,  156  N.  Y.  Supp.  S99. 

The  rule  in  certiorari  cases  is  that,  if  in  any  reasonable  view  of  the  evi- 
dence it  will  support  the  conclusion  arrived  at,  such  conclusion  will  not  be 
disturbed  for  want  of  support  in  the  evidence.  If,  however,  the  findings  have 
no  support  in  the  testimony,  there  was  no  jurisdiction  to  make  them.  In- 
ternational Harvester  Co.  v.  Indus.  Com.,  157  Wis.  167,  147  N.  W.  53,  Ann. 
Cas.  1916B,  330 ;  State  ex  rel.  v.  Willcuts,  143  Wis.  449,  453,  12S  N.  W.  97 ; 
State  ex  rel.  v.  Losby,  115  Wis.  57,  90  N.  W.  188 ;  State  ex  rel.  v.  Fisher,  129 
Wis.  57,  108  N.  W.  206;  Milwaukee  Western  Fuel  Co.  v.  Indus.  Com.,  159 
Wis.  635,  150  N.  W.  998. 

The  action  of  the  Commission  is  final  and  irreviewable,  except  as  to  mat- 
ter "going  to  the  basis  of  the  claimant's  right."     (Code,  c.  15p,  §  43  [ser.  sec. 

51  A  decision  is  conclusive  only  when  it  is  within  the  Board's  jurisdiction, 
Uphoff  V.  Indus.  Board  of  111.,  271  111.  312,  111  N.  E.  128.  In  the  absence  of 
proof  that  the  Accident  Board  had  jurisdiction  to  make  the  award,  an  order 
of  such  Board  confirming  an  award  of  the  Arbitration  Committee  will  be 
set  aside.     Shevchenko  v.  Detroit  United  Ry.  (Mich.)  155  N.  W,  423. 


§  242  workmen's  compensation  828 

cient  evidence  ;^^  but  an  admission  of  incompetent  evidence  will 
not  operate  to  reverse  an  award,  if  there  is  any  basis  in  the  com- 

699].)  As  to  such  matters,  its  function  is  administrative,  only  quasi  judicial, 
and  the  supervisory  power  of  tliis  court  over  its  action,  respecting  the  right 
of  the  claimant,  is  under  its  original  jurisdiction  by  mandamus.  Poccardi  v. 
Public  Service  Com.,  75  W.  Va.  5-12,  84  S.  E.  242,  L.  R.  A.  1916A,  299;  De 
Constantin  v.  Pub.  Ser.  Com.,  75  W.  Va.  32,  S3  S.  E.  88,  L.  R.  A.  1916A,  329. 
In  this  respect,  the  West  Virginia  statute  accords  with  the  British  Compensa- 
tion Act,  and  those  of  several  states  limiting  the  power  of  review  to  questions 
of  law.  Gane  v.  Colliery  Co.,  2  B.  W.  C.  C.  42;  Turner  v.  Bell  &  Sons,  4  B. 
W.  C.  C.  G3;  Moss  &  Co.  v.  Akers,  4  B.  W.  C.  C.  294;  111.  Act  (Kurd's  Rev.  St. 
1913,  c.  48)  §  19;  Iowa  Act  (Acts  35th  Gen.  Assem.  c.  147)  §  34;  Mass.  Act  (St. 
1911,  c.  751)  pt.  3,  §§  10,  11 ;  Mich.  Act  (Pub.  Acts  Extra  Sess.  1912,  No.  10) 
pt.  3,  §§  11,  12,  13;    Miim.  Act  (Gen.  St.  1913,  §§  8216,  8225)  §§  22,  30. 

"In  a  number  of  states  of  the  Union,  under  the  provisions  of  statutes  some- 
what similar  to  our  own,  the  determination  of  questions  of  fact  is  referred 
to  certain  Boards  or  Commissions,  created  by  said  statutes.  These  boards 
have  different  titles  in  different  states,  viz.,  a  Board  of  Award,  Industrial 
Accident  Board,  Board  of  Arbitration,  Committee  of  Arbitration,  and  other 
names.  The  provisions  are  also  somewhat  common  in  these  statutes  that  find- 
ings of  fact  by  such  a  Board  shall  be  final,  and  that,  upon  appeal,  a  review 
of  the  proceedings  of  such  Boards  shall  be  limited  to  questions  of  law.  In  the 
construction  of  these  statutory  provisions,  courts  of  last  resort  in  the  various 
states  have  generally  held  that  a  finding  of  fact,  although  declared  conclu- 
sive by  the  statute,  will  not  be  upheld,  if  there  is  no  evidence  to  support  it. 
Under  the  Rhode  Island  Act  it  is  contemplated  that  the  decision  of  the  jus- 
tice of  the  superior  court  and  the  decree  of  that  court  shall  be  based  upon 
evidence,  and  not  arbitrarily  made.  If  the  record  discloses  that  a  finding  of 
fact  is  entirely  without  legal  evidence  tending  to  support  it,  such  finding 
amounts  to  an  error  of  law,  and  will  be  reviewed  by  this  court  upon  appeal 
and  set  aside."     Jillson  v.  Ross  (R.  I.)  94  Atl.  717. 

52  An  award  cannot  stand,  if  a  finding  of  a  jurisdictional  fact  is  without 
any  support,  except  that  of  hearsay  testimony.  Employers'  Assur.  Corp., 
Ltd.,  V.  Cal.  Indus.  Ace.  Com.,  2  Cal.  I.  A.  C.  Dec.  452,  170  Cal.  SOO,  151  Pac. 
424,  The  decision  of  the  arbitrators  and  of  the  Industrial  Board  must  be 
sustained  by  some  competent  evidence.  Where  it  is  founded  on  hearsay,  or 
other  improper  or  insufficient  evidence,  the  circuit  court  should,  on  certiorari, 
remand  the  proceeding  to  the  Industrial  Board  for  proper  proceeding.  Vic- 
tor Chemical  Works  v.  Indus.  Board  of  111.  (1916)  274  111.  11,  113  N.  E.  173. 
Where  the  order  of  the  Industrial  Accident  Board  is  not  authorized  by  the 
evidence,  it  will  be  reversed,  and  the  case  remanded  for  further  hearing  be- 
fore the  Board.     Carpenter  v.  Detroit  Forging  Co.  (1916,  Mich.)  1-57  N.  W. 


829  SETTLEMENT  OF  CONTROVERSIES  §  242 

petent  evidence  to  support  it."^  The  court  may  usually  examine 
and  take  into  account  the  evidence  adduced  before  a  Commission  as 
supplementing,  illuminating,  or  explaining,  though  not  as  varying 
or  contradicting,  the  findings  of  fact  made  by  the  Commission.^* 
A  probative  fact  found  cannot  prevail  over  the  findings  of  ultimate 
facts,  unless  necessarily  in  conflict  with  such  findings. ^^  But  it  is 
proper  to  consider  whether  the  subordinate  facts  found  by  a  Com- 

374.  An  award  made  by  the  deputy  commissioner  on  hearsay  and  insuffi- 
cient testimony  of  a  flimsy  character  on  the  question  of  dependency  will  be 
set  aside  by  the  court.  Tirre  v.  Bush  Terminal  Co.,  172  App.  Div.  386,  158 
N.  Y.  Supp.  883. 

5  3  First  Nat.  Bank  v.  Indus.  Com.,  161  Wis.  526,  154  N.  W.  847;  Andrzejew- 
ski  V.  Northwestern  Fuel  Co.,  158  Wis.  170,  148  N.  W.  87;  Chicago  &  N.  W. 
Ry.  Co.  V.  Railroad  Com.,  156  Wis.  47,  145  N.  W.  216,  974;  Borgnis  v.  Falk 
Co.,  147  Wis.  327,  133  N.  W.  209,  38  L.  R.  A.  (N.  S.)  489 ;  Milwaukee  Coke  & 
Gas  Co.  V.  Indus.  Com.,  160  Wis.  247,  151  N.  W.  245 ;  Milwaukee  Western  Fuel 
Co.  V.  Indus.  Com.,  159  Wis.  635,  150  N.  W.  998. 

"We  do  not  think,  however,  that  under  the  language  used  in  our  Workmen's 
Compensation  Act  the  decision  of  its  administrative  board  must  be  in  all 
cases  reversed  under  the  rule  of  presumptive  prejudice,  because  of  error  in 
the  admission  of  incompetent  testimony,  when,  in  the  absence  of  fraud,  there 
appears  in  the  record  a  legal  basis  for  its  findings,  which  are  made  'conclu- 
sive' by  statute  when  said  board  acts  within  the  scope  of  its  authority."  Fitz- 
gerald V.  Lozier  Motor  Co.,  187  Mich.  660,  154  N.  W.  67;  Reck  v.  Whittles- 
berger,  181  Mich.  463,  148  N.  W.  247,  Ann.  Cas.  1916C,  771. 

In  McGarva  v.  Hills,  1  Conn.  Comp.  Dec.  533,  the  superior  court  held,  in 
affirming  the  award  of  the  Commissioner,  that  an  error  in  the  admission  of 
testimony  cannot  be  a  ground  for  setting  aside  an  award;  that  it  would  not 
be  set  aside  unless  it  was  illegal  or  very  unreasonable. 

5  4  Gleisner  v.  Gross  &  Herbener,  170  App.  Div.  37,  155  N.  Y.  Supp.  946. 

Though  the  Commission  has  certified  the  evidence  taken  before  it,  as  well 
as  its  findings  of  fact  therefrom,  such  evidence  will  be  considered  by  the 
Supreme  Court  merely  to  supplement,  explain,  and  illuminate,  but  not  to 
contradict  or  vary,  the  Commission's  findings  of  fact.  The  question  of  the 
correctness  of  the  Commission's  determination  as  to  the  applicability  of  the 
statute  to  the  injury  on  which  the  claim  is  based  remains  in  all  cases  a  ques- 
tion for  judicial  scrutiny,  in  the  light  of  the  facts  as  found  by  the  Commis- 
sion.    In  re  Rheinwald,  168  App.  Div.  425,  153  N.  Y.  Supp.  598. 

5  5  Western  Indemnity  Co.  v.  Pillsbury,  170  Cal.  686,  151  Pac.  398;  Peo- 
ple v.  McCue,  150  Cal.  195,  88  Pac.  899. 


§  242  workmen's  compensation  830 

missioner  support  the  ultimate  fact,  as  well  as  whether  the  ultimate 
fact  supports  the  conclusion  of  law.^°  Unless  the  facts  in  evidence 
are  practically  undisputed,  an  appellate  tribunal  cannot  with  fair- 
ness to  the  rights  of  the  parties  assume  a  fmding  of  facts  as  made  by 
the  tribunal  under  review,  when  there  is  no  finding  of  record  of 
the  tribunal  of  these  facts.^^  Where  the  evidence  is  not  reported,  it 
cannot  be  successfully  contended  that  as  a  matter  of  law  findings 
of  fact  were  not  warranted. ^^  A  decision  that  the  injuries  were 
not  due  to  accident  makes  that  question  res  judicata. °^ 

Evidence  that  a  workman  returned  to  work,  regained  his  health, 
and  gave  a  release,  authorizes  an  order  that  he  had  been  fully  com- 
pensated.^°  The  unexplained  absence  of  the  testimony  of  the  phy- 
sician who  attended  the  deceased  employe  is  not  substantial  evi- 
dence overcoming  the  statutory  presumption  favorable  to  the 
award. °^ 

The  positive  duty  resting  on  the  Committee  of  Arbitration  in 
Massachusetts  to  report  all  material  testimony  supplies  the  absence 
of  an  express  statement  in  the  bill  of  exceptions.  And  hence  it  was 
open  to  the  insurer  to  argue  that  findings  were  not  supported  by 
the  evidence,  though  the  bill  of  exceptions  contained  no  such  state- 
ment.^^ 

Where  a  city,  as  employer,  stipulated  that  arbitration  should  be 
waived  and  the  claim  of  a  dependent  be  submitted  to  the  Michigan 

56  McGarva  v.  Hills,  1  Conn.  Comp.  Dec.  533. 

67  Hartz  V.  Hartford  Faience  Co.  (1916)  90  Conn.  539,  97  Atl.  1020. 

5  8  In  re  Bentley,  217  Mass.  79,  104  N.  E.  432 ;   In  re  Septimo,  219  Mass.  430, 
107  N.  E.  63 ;    In  re  Fisher,  220  Mass.  581,  108  N.  E.  361. 

5  9  (Wk.  Comp.  Act,  §  20)  Naud  v.  King  Sewing  Mach.  Co.  (1910)  95  Misc. 
Rep.  676,  159  N.  T.  Supp.  910. 

6  0  (Laws  1913,  e.  599,  §  2394—19)  Oldenberg  v.  Indus.  Com,,  159  Wis.  333, 
150  N.  W.  444. 

61  Sullivan  v.  Indus.  Engineering  Co.,  158  N.  Y.  Supp.  970. 

6  2  (St.  1911,  pt.  3,  §  7,  as  amended  by  St.  1912,  c.  571,  §  12)  In  re  Bright- 
man,  220  Mass.  17,  107  N.  E.  527,  L.  R.  A.  1916A,  321. 


831  SETTLEMENT  OF  CONTROVERSIES  §  243 

Industrial  Accident  Board,  and  the  claimant's  divorced  husband 
appeared  and  denied  her  right  to  an  award,  the  claimant  proceeded 
on  the  theory  that  a  hearing  should  be  had  before  the  Board  ques- 
tioning whether  the  parties  were  bound  by  the  stipulation,  claim- 
ant could  not  urge,  on  certiorari  to  review  the  Board's  award,  that 
the  hearing  before  the  Board  was  violative  of  the  stipulation. ^^ 

Under  the  express  provisions  of  the  Illinois  Act,  the  circuit  court 
at  any  time  has  power  on  application  to  make  its  judgment  conform 
to  any  modification  required  by  any  subsequent  proceedings  for  re- 
view, and  hence  an  order  of  the  circuit  court  that  it  "retained  juris- 
diction for  the  purpose  of  enforcing  this  judgment  and  in  accord- 
ance with  the  statute"  was  unnecessary,  but  harmless.®*  Where 
an  application  is  made  for  judgment  on  the  Industrial  Board's 
award,  and  no  attempt  has  been  made  to  review  the  Board's  find- 
ings, the  circuit  court  has  no  jurisdiction  to  inquire  into  the  le- 
gality of  the  Board's  action,  but  is  authorized  only  to  enter  judg- 
ment on  the  award. '^^ 

§  243.     Connecticut 

As  said  in  a  recent  Connecticut  case,  the  power  of  the  superior 
court  in  the  correction  of  the  finding  of  the  compensation  commis- 
sioner is  analogous  to,  and  its  method  of  correcting  the  finding  sim- 
ilar to,  the  power  and  method  of  the  Supreme  Court  of  Errors  in 
correcting  the  finding  of  the  superior  court.  The  finding  of  the 
superior  court  on  an  appeal  from  an  award  of  the  Commissioner, 
unless  it  corrects  the  finding  of  the  Commissioner,  should  merely,  in 
its  finding,  make  that  finding  a  part  of  its  record,  without  refind- 
ing  the  facts,  or  making  them  the  findings  of  fact  for  the  purpose  of 
appeal.    If  the  trial  court  corrects  the  finding,  it  should  indicate  in 

63  (Pub.  Acts  Extra  Sess.  1912,  No.  10)  Vereeke  v.  City  of  Grand  Rapids, 
184  Mich.  474,  151  N.  W.  723. 

64  Armour  &  Co.  v.  Indus.  Board  of  111.  (1916)  273  111.  590,  113  N.  E.  138. 

6  5  Pitt  V.  Central  Illinois  Public  Service  Co.  (1916)  273  111.  617,  113  N.  E. 
153. 


§  243  workmen's  compensation  832 

its  finding-s  on  appeal  the  corrections  so  made  in  the  finding  of 
the  Commissioner.^®  If  the  trial  court  finds  no  harmful  error  in  the 
appeal  from  the  Commissioner,  it  should  dismiss  the  appeal ;  but  if 
it  finds  harmful  error,  either  in  the  conclusion  of  law  reached,  or  in 
a  conclusion  of  fact  reached,  or  in  the  finding  of  a  material  fact, 
or  the  refusal  to  find  a  material  fact,  it  should,  if  the  award  may  be 
changed  or  modified,  without  requiring  a  further  hearing,  sustain 
the  appeal  to  this  extent  and  direct  the  Commissioner  to  make  the 
award  in  accordance  with  its  direction.  Where  the  award  cannot 
be  changed  or  modified  according  to  the  trial  court's  conclusion 
without  a  further  hearing  on  the  facts,  it  should  sustain  the  appeal 
and  indicate  in  the  judgment  or  its  memorandum  the  ground  of  its 
action. ^'^ 

In  a  case  wherein  the  award  was  made  against  both  the  employer 
and  insurer,  it  was  held  but  just  that  the  insurer  should  be  allowed 
to  contest  the  correctness  of  the  award  on  appeal,  though  it  neg- 
lected to  take  its  appeal  in  the  name  of  its  insured,  instead  of  its 
own  name,  as  provided  by  the  terms  of  the  policy.®^ 

An  exception  to  a  finding,  on  the  ground  that  "the  court  erred 
in  finding  the  facts  set  forth  in  part  first  of  the  finding,"  is  too  gen- 
eral, and  should  specifically  point  out  the  paragraphs  of  the  find- 
ing of  the  Commissioner  and  the  part  of  the  finding  of  the  superior 
court  which  it  was  desired  to  have  corrected.*^® 

§  244.     Washington 

Under  the  Washington  Act  the  findings  and  award  of  the  Insur- 
ance Department  are  reversible  only  on  three  grounds:    (1)   That 
it  acted  without  or  in  excess  of  its  powers ;    (2)   that  the  award  was 
procured  by  fraud;    and  (3)  that  the  findings  of  fact  by  the  De- 
es Thompson  v.  Twiss  (1916)  90  Conn.  444,  97  Atl.  328. 
6  7  Id, 

6  8  Wright  V.  Barnes,  1  Conn.  Comp.  Dec.  248. 
6  9  Thompson  v.  Twiss,  supra. 


833  SETTLEMENT  OF  CONTROVERSIES  §  245 

partment  do  not  support  the  award. ^°  The  finding  of  the  Depart- 
ment of  the  nonexistence  of  any  one  of  the  four  facts  essential  to 
establish  a  right  to  compensation  would  result  in  the  denial  of  an 
award,  and  in  such  case  an  appeal  is  allowedJ^ 

§  245.     California 

Under  the  provision  of  the  California  Act  that  "the  findings  and 
conclusions  of  the  Commission  on  questions  of  fact  shall  be  con- 
clusive and  final  and  shall  not  be  subject  to  review;  such  questions 
of  fact  shall  include  ultimate  facts  and  the  findings  and  conclusions 
of  the  Commission,"  the  correctness  of  the  findings  of  fact  cannot  be 
questioned  where  there  has  been  presented  to  the  Commission  any 
evidence  to  support  them.  The  phrase  "such  questions  of  fact  shall 
include  ultimate  facts  and  the  findings  and  conclusions  of  the  Com- 
mission" must  relate  wholly  to  conclusions  of  fact,  for  the  clause  ex- 
pressly so  declares.  Ultimate  facts  are  nothing  more  than  conclu- 
sions of  fact  drawn  from  the  probative  or  evidentiary  facts;  hence 
matters  of  fact  stated  in  their  ultimate  form  cannot  differ  from 
conclusions  of  fact,  however  characterized.'^^  This  Act  is  not  effec- 
tive to  prevent  application  to  the  superior  court  to  exercise  its  orig- 
inal jurisdiction  by  way  of  certiorari.''^  The  question  whether  a 
finding  on  whether  a  workman  was  guilty  of  "willful  misconduct" 
is  supported  by  the  evidence,  being  one  going  to  the  jurisdiction,  is 
reviewable  on  certiorari,  where  there  is  no  substantial  conflict  in 
the  testimony.'^*  Proceedings  of  the  Industrial  Accident  Commis- 
sion will  not  be  reviewed  on  the  ground  that  the  Commission's  find- 
ings are  not  sustained  by  the  evidence  and  that  the  applicant  had 
discovered  no  evidence  material  to  him ;  these  being  grounds  on 
which  the  Commission  may  grant  a  rehearing  under  Workmen's 

7  0  (Wk.  Comp.  Act  Wash.  §  20)  Rulings  of  Wash.  Indus.  Ins.  Com.  1915,  p.  24. 

71  (Wk.  Comp.  Act  Wash.  §  5)  Id.  p.  14. 

72  Smith  V.  Industrial  Accident  Commission,  26  Cal.  App.  560,  147  Pac.  600. 
78  Great  Western  Power  Co.  v.  Pillsbury,  170  Cal.  180,  149  Pac.  35. 

74  Id. 

HoN.CoMP. — 53 


§  245  ■  workmen's  compensation  834 

Compensation  Act,  §  82,  but  the  court  being  restricted  to  grounds 
stated  in  section  84.'^^  Section  84  does  not  include  the  word 
"award,"  and  therefore  applies  only  to  regulations  made  by  the 
Commission  for  the  safeguarding  of  employes  against  safety  orders, 
decisions,  rules,  or  regulations  unreasonable  in  character.  The  un- 
reasonableness of  an  award  is  not  a  ground  of  review.^^  The  re- 
fusal of  a  referee  in  taking  testimony  to  allow  cross-examination 
of  a  witness  upon  certain  matters  is  mere  error  in  taking  testimony, 
which  cannot  be  reached  by  a  writ  of  certiorari,  under  the  Califor- 
nia Act/^  A  judgment  of  the  Commission,  ordering  the  employer 
to  pay  "to  the  persons  entitled  to  receive  the  same  the  reasonable 
value  of  medical  and  surgical  services  rendered  to  the  applicant," 
cannot  be  enforced  until  the  amounts  are  designated  and  the  persons 
named,  and  until  that  time  no  application  can  be  made  for  the  re- 
view of  such  award.^^  A  decision  on  certiorari  that  an  award  of 
the  Commission  is  not  sufficiently  supported  by  evidence  should 
merely  annul  the  order,  leaving  the  Commission  to  proceed  with 
a  further  hearing  if  it  has  power  to  do  so.''^  Where  the  Commission 
ordered  an  employer  to  pay  the  reasonable  value  of  medical  serv- 
ices received  by  the  injured  employe,  but  stipulated  that  the  claims 
were  to  be  approved  by  it  before  they  were  paid,  the  award  was 
not  enforceable  as  a  final  judgment  because  of  the  reservation,  and 
hence  was  not  reviewable  on  appeal. ^° 

The  findings  of  the  Commission  that  an  employe  has  been  allowed 
compensation  for  a  longer  period  than  that  of  actual  disability,  and 
that  in  making  the  award  the  Commission  failed  to  credit  the  em- 

7  5  Cardoza  v.  Pillsbury,  169  Cal.  106,  145  Pae.  1015. 

7  6  Stevens  v.  Tittle,  2  Cal.  I.  A.  C.  Dee.  146. 

7  7  (Wk.  Comp.  Act,  §§  77,  84)  Frankfort  General  Ins.  Co.  v.  Pillsbury  (Cal.) 
159  Pac.  150. 

7  8  Garratt-Callahan  Co.  v.  Indus.  Ace.  Com.  of  St.  of  Cal.,  2  Cal.  I.  A.  C. 
Dec.  953,  171  Cal.  334,  153  Pac.  239. 

7  9  Englebretson  v.  Indus.  Ace.  Com.,  170  Cal.  793,  151  Pac.  421. 

80  Rains  v.  Diamond  Match  Co.,  171  Cal.  326,  153  Pac.  239. 


835  SETTLEMENT  OF  CONTROVERSIES  §  240 

ployer  with  a  certain  sum  paid  by  him  to  the  employe,  will  not  be 
reviewed  (assuming  that  such  findings  are  reviewable),  where  the 
application  for  rehearing  with  the  Commission  does  not  sufficiently 
set  forth  the  only  claim  as  to  which  there  might  be  some  ground 
for  contending  that  there  was  an  entire  absence  of  evidence  to  sup- 
port the  finding  of  the  Commission  of  compensation  for  a  longer 
period  than  that  of  actual  disability,  and  where  the  failure  to  cred- 
it the  employer  with  the  sum  named  is  not  presented  in  the  applica- 
tion for  rehearing.^^ 


Division  III. — Re:vie:w  by  Higher  Court 

§  246.     Remedies 

In  Minnesota  the  right  of  review  by  certiorari  is  open  to  both 
parties,  by  which  all  rights  may  be  fully  protected. ^^  Claimant 
cannot,  however,  have  the  record  reviewed  on  certiorari  issued  on 
the  relation  of  one  against  whom  a  judgment  for  compensation  has 
been  rendered.  The  writ  serves  the  purpose  of  an  appeal.  Only 
the  party  on  whose  relation  it  has  issued  can  complain. ^^ 

In  New  York  there  is  no  provision  of  statute  or  rule  of  court  re- 
quiring the  filing  of  exceptions,  or,  as  in  England  and  some  of  the 
states,  that  the  grounds  of  appeal  be  stated  in  the  notice  of  appeal ; 
but  it  was  intended  that  the  procedure,  both  before  the  Commis- 
sion and  in  the  court,  should  be  simple  and  without  unnecessary 
delay  or  useless  formality,  and  that  until  otherwise  provided  the 
appeal  to  the  Supreme  Court  should  bring  up  the  whole  case,  to 
be  heard  on  the  record  of  the  Commission  and  the  briefs  and  argu- 
ment submitted  by  the  respective  parties.^*     In  a  recent  case  it  was 

81  Pacific  Coast  Casualty  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  538,  171  Cal. 
319,  153  Pac.  24. 

8  2  (Wk.  Comp.  Act,  §  30;  Gen.  St.  1913,  §  8225)  State  ex  rel.  Nelson-Spelliscy 
Co.  V.  District  Court  of  Meeker  County,  128  Minn.  221,  150  N.  W.  623. 

83  State  ex  rel.  Globe  Indemnity  Co.  v.  District  Court  (Minn.)  156  N.  "W.  120. 

84  Kenny  v.  Union  Ry.  Co.,  1C6  App.  Div.  497,  152  N.  Y.  Supp.  117. 


§  246  workmen's  compensation  836 

held  that  the  questions  considered  were  not  affected  by  the  fact 
that  after  the  appeal  was  taken  the  New  York  Workmen's  Compen- 
sation Commission  was  superseded  by  the  Industrial  Commission. ^^ 
Though  proceedings  under  the  Massachusetts  Act  are  analogous 
to  the  chancery  practice,  yet,  since  the  Act  does  not  provide  for 
exceptions,  the  only  way  by  which  questions  of  law  may  be  re- 
viewed in  the  Supreme  Judicial  Court  is  by  appeal.^" 

§  247.     Right  of  appeal 

Under  the  Illinois  Act,  an  order  of  a  superior  court  awarding 
weekly  payments  of  death  benefits  may  be  appealed  to  the  Appel- 
late Court.^''  The  provision  of  the  Massachusetts  Act  "that  there 
shall  be  no  appeal  from  a  decree  upon  an  order  or  decision  of  the 
Board  which  has  not  been  presented  to  the  court  within  ten  days 
after  the  notice  of  the  filing  thereof  by  the  Board"  does  not  mean 
that  the  case  must  be  actually  brought  to  the  attention  of  a  justice 
of  the  superior  court  within  that  time.  It  is  a  compliance  with  the 
statute  if  the  required  papers  are  presented  in  the  court  in  the  sense 
of  being  filed  as  a  part  of  its  record  within  the  time  prescribed.^^ 
The  Massachusetts  Act  does  not  contemplate,  either  in  its  letter  or 
its  spirit,  that  the  insurer  may  litigate  by  appeal  to  the  Supreme 
Judicial  Court  the  proportions  of  the  divisions  of  a  payment  among 

8  5  Carroll  v.  Knickerbocker  Ice  Co.  (N.  Y.)  113  N.  E.  507,  reversing  169  App. 
Div.  450,  155  N.  Y.  S.  1. 

8  6  rigeon  V.  Employers'  Liab.  Assur.  Corp.,  216  Mass.  51,  102  N.  E.  932,  Ann. 
Cas.  1915A,  737.  The  requirement  of  the  Act  that  the  superior  court  enter  a 
decree  precludes  the  possibility  of  exceptions,  and  thereby  requires  that  the 
suit  be  brought  up  by  appeal  from  the  superior  court's  decree,  and  not  by  ex- 
ceptions. In  re  American  Mut.  Liab.  Ins.  Co.,  215  Mass.  480,  102  N.  E.  693, 
Ann.  Cas.  1914D,  372;  (St.  1911,  c.  751)  In  re  McNichol,  215  Mass.  497,  102 
N.  E.  697,  L.  R.  A.  1916A,  306.  Appeal  is  the  only  method  by  which  questions 
of  law  arising  under  the  Act  can  be  brought  to  the  Supreme  Judicial  Court. 
In  re  Cripp,  216  Mass.  586,  104  N.  E.  565,  Ann.  Cas.  1915B,  828. 

87  Lavin  v.  Wells  Bros.  Co.,  272  111.  609,  112  N.  E.  271. 

88  {Wk.  Comp.  Act,  as  amended  by  St.  1912,  c.  571,  §  14)  In  re  McPhee,  222 
Mass.  1,  109  N.  E.  633. 


837  SETTLEMENT  OF  CONTROVERSIES  §  248 

those  claiming-  to  be  dependents  upon  the  deceased  employe,  when 
the  dependents  are  satisfied  and  do  not  appeal,  and  when  the  in- 
surer cannot  by  any  possibility  be  affected  in  its  pecuniary  respon- 
sibility by  any  modification  permitted  by  law  of  the  order  for  pay- 
ment. In  such  case  the  insurer  is  not  entitled  to  be  heard  on  the 
question  of  the  division  of  the  payments. ^^ 

§  248.     Presentation  below  and  for  review 

Questions  presented  for  the  first  time  on  appeal  cannot  ordinarily 
be  considered. ^°  The  court  will  not  assume,  in  the  absence  of  a 
statement  in  the  record  to  that  effect,  that  all  the  evidence  on  which 
a  special  tribunal  made  its  findings  and  decision  was  before  the 
court.^^ 

In  cases  arising-  under  the  elective  compensation  section  of  the 
New  Jersey  Act,  the  statement  of  facts  as  determined  by  the  trial 
judge  should  be  specific  as  to  the  nature  and  extent  of  the  injury, 
so  that  the  reviewing  court  may  be  enabled  to  judge  of  the  propriety 
of  the  award  as  supported  by  the  facts  found. ^^ 

8  9  la  re  Janes,  217  Mass.  192,  104  N.  E.  556. 

9  0  The  Supreme  Court  will  not  try  and  determine  an  issue  not  considered  or 
decided  below.  A  ruling  upon  the  exclusion  of  testimony  is  not  available  as 
error,  where  no  proof  is  made  at  the  hearing  of  the  motion  for  a  new  trial 
as  to  what  the  witnesses  would  have  sworn  to,  had  they  been  permitted  to 
testify.  Oliver  v.  Christopher,  98  Kan.  660,  159  Pac.  397.  McEoberts  v.  Na- 
tional Zinc  Co.,  93  Kan.  364,  144  Pac.  247.  A  contention  that  the  employe  was 
but  a  casual  employe  cannot  be  considered,  when  presented  for  the  first  time  on 
appeal.  Victor  Chemical  Works  v.  Indus.  Board  of  111.  (1916)  274  111.  11,  113 
N.  E.  173.  Objections  to  the  consideration  of  certain  evidence  by  the  Mass- 
achusetts Board  will  not  be  considered  by  the  Supreme  Court  on  appeal,  when 
not  made  before  the  Board.  Duprey  v.  Maryland  Casualty  Co.,  219  Mass. 
189,  106  N.  E.  686. 

But  it  was  not  necessary  for  the  relator  to  ask  the  trial  court  to  amend  its 
decision  in  the  respects  in  which  it  was  in  error,  in  order  to  raise  the  ques- 
tions in  the  Supreme  Court.  State  ex  rel.  Anseth  y.  District  Court  (Minn.) 
158  N.  W.  713. 

91  In  re  Stickley,  219  Mass.  513,  107  N.  E.  350. 

92  Long  V.  Bergen  County  Court  of  Common  Pleas,  84  N.  J.  Law,  117,  86 
Atl.  529,  supported  by  James  A.  Banister  Co.  v.  Kriger,  84  N,  J.  Law,  30,  85 
Atl.  1027. 


§  248  workmen's  compensation  838 

The  Illinois  Supreme  Court's  powers  to  review  are  limited  to  a 
determination,  from  the  facts  recited  in  the  decision  of  the  Indus- 
trial Board,  whether  that  body  acted  within  its  power  in  making 
an  award. ^^  In  New  York,  where  the  undisputed  facts  in  connec- 
tion with  the  testimony  of  the  claimant,  supported  by  every  reason- 
able inference  that  can  be  drawn  therefrom,  do  not  warrant  an 
award,  an  award  made  will  be  reversed  on  appeal  from  a  non-unan- 
imous affirmance.®* 

If  the  time  during  which  periodical  payments  of  compensation  are 
to  be  paid  under  the  Nebraska  Act  is  not  more  than  six  months,  the 
trial  court  has  no  continuing  jurisdiction  over  the  case,  and  upon 
appeal  from  such  an  order  the  bill  of  exceptions  must  be  settled 
with  reference  to  the  term  at  which  such  order  is  made.®^  Where 
the  compensation  awarded  does  not  extend  over  a  period  of  more 
than  six  months,  if  the  bill  of  exceptions  is  not  settled  with  refer- 
ence to  the  term  at  which  the  order  is  made,  and  motion  is  made  to 
quash  it  for  that  reason,  the  Supreme  Court  on  appeal  cannot  con- 
sider the  bill  of  exceptions  for  the  purpose  of  reviewing  the  original 
order.®^ 

§  249.     Questions  reviewable 

Findings  of  fact  are  ordinarily  conclusive  when  supported  b)'' 
any  evidence,®'^  though  the  evidence  is  weak  and  unsatisfactory;®^ 

9?.  Munn  V.  Indus.  Board  (1916)  274  111.  70,  113 -N.  E.  110. 

91  (Wk.  Comp.  Law,  §§  20,  21)  Jerome  v.  Queen  City  Cycle  Co.,  163  N.  T. 
351,  57  N.  E.  485,  affirming  24  App.  Div.  632,  48  N.  Y.  Supp.  1107;  In  re 
Heitz,  218  N.  Y.  148,  112  N.  B.  750,  affirming  155  N.  Y.  Supp.  1112. 

9  5  Hanley  v.  Union  Stockyards  Co.  (Neb.)  158  N.  W.  939. 

96  Id. 

97  Munn  V.  Industrial  Board  (1916)  274  111.  70,  113  N.  E.  110;  Redfield  v. 
Mich.  Workmen's  Compensation  Mut.  Ins.  Co.,  183  Mich.  633,  150  N.  W.  362 ; 

98  A  finding  that  claimant  was  partially  dependent  on  her  deceased  brother 
could  not  be  disturbed,  where  it  was  supported  by  evidence,  though  the  evi- 
dence was  weak  and  unsatisfactory.  State  ex  rel.  Globe  Indemnity  Co.  v. 
District  Court  (Minn.)  156  N.  W.  120. 


839  SETTLEMENT  OF  CONTROVERSIES  §  240 

the  review  being  limited  to  questions  of  law.*"*  The  findings  of  the 
ultimate  facts  of  the  controversy,  in  many  instances,  will  involve 

(finding  that  there  was  a  casual  connection  between  the  injury  and  the  pneu 
monia  causing  the  worliman's  death)  Bayne  v.  Riverside  Storage  &  Cartage 
Co.,  181  Mich.  378,  148  N.  W.  412 ;  Zabrisliie  v.  Erie  R.  Co.,  86  N.  J.  Law,  266, 
92  Atl.  385,  L.  R.  A.  1916A,  315;  Sexton  v.  Newarlv  Dist.  Telegraph  Co.,  84 
N.  J.  Law,  85,  86  Atl.  451,  affirmed  86  N.  J.  Law,  701,  91  Atl.  1070 ;  Bryant  v, 
Fissell,  84  N.  J.  Law,  72,  86  Atl.  458 ;  Hulley  v.  Moosbrugger,  88  N.  J.  Law, 
161,  95  Atl.  1007,  L.  R.  A.  1916C,  1203 ;  Jackson  v.  Erie  R.  R.  Co.,  86  N.  J. 
Law,  550,  91  Atl.  10-35 ;  Delaware,  L.  &  W.  R.  R.  Co.  v.  Hardy,  59  N.  J.  Law, 
35,  34  Atl.  986;  (finding  as  to  the  duration  of  disability,  Wk.  Comp.  Act,  §  2, 
par.  18)  Scott  v.  Payne  Bros.,  85  N.  J.  Law,  446,  89  Atl.  927 ;  (finding  that  em- 
ploye's death  resulted  from  an  accident  arising  out  of  and  in  the  course  of 
his  employment)  Winter  v.  Atkinson-Frizolle  Co.,  88  N.  J.  Law,  401,  96  Atl. 
360;  (Wk.  Comp.  Act,  Pub.  Laws  1911-12,  c.  831)  Weber  v.  American  Silk 
Spinning  Co.  (R.  I.)  95  Atl.  603;  Corral  v.  William  H.  Hamlyn  &  Son  (R.  I.) 
94  Atl.  877 ;  Jillson  v.  Ross  (R.  I.)  94  Atl.  717. 

A  finding  that,  where  the  hands  of  a  longshoreman  employed  in  unloading 
a  vessel  on  an  exposed  pier  in  an  open  harbor  were  frozen,  the  accident 
arose  out  of  his  employment,  could  not  be  disturbed  by  the  Supreme  Judicial 
Court,  where  the  finding  was  reasonably  supported  by  the  evidence.  Mc- 
Manaman's  Case  (Mass.)  113  N.  E.  287. 

The  inquiry  was  limited  to  the  question  whether  the  evidence,  if  satisfac- 
tory to  the  trial  court,  reasonably  tended  to  support  the  plaintiff's  conten- 
tious. State  ex  rel.  Nelson-Spelliscy  Co.  v.  District  Court  of  Meeker  County, 
128  aiinn.  221,  150  N.  W.  623. 

'  The  trial  judge's  finding  of  fact  that  deceased  was  not  in  the  usual  passage- 
way between  the  tracks,  but  was  on  the  track,  and  that,  if  he  were  killed  with- 
out voluntary  action  on  his  part,  he  must  have  been  a  trespasser,  and  there- 
fore, if  an  accident  happened,  it  did  not  arise  out  of  the  decedent's  employ- 
ment, was  conclusive  on  certiorari.  Siemientkowski  v.  Berwind  White  Coal 
Mining  Co.  (N.  J.)  92  Atl.  909. 

8  9  The  Supreme  Court  is  bound  by  the  findings  of  fact  made  by  the  Indus- 
trial Board,  and  can  only  review  its  decision  for  errors  of  law.  Munn  v. 
Indus.  Board  (1916)  274  111.  70,  113  N.  E.  110.  Findings  of  the  Industrial 
Accident  Board  will  not  be  disturbed  by  the  Supreme  Court  on  certiorari, 
where  they  are  sustained  by  some  evidence.  Spooner  v.  Detroit  Saturday 
Night  Co.,  187  Mich.  125,  153  N.  W.  657,  L.  R.  A.  1916A,  17 ;  Rayner  v.  Sligh 
Furniture  Co.,  ISO  Mich.  168,  146  N.  W.  605,  L.  R.  A.  1916A,  22,  Ann.  Cas. 
1916A,  386.  By  section  2,  par.  20,  of  the  Act,  the  right  of  the  Supreme  Court 
to  review  on  certiorari  is  limited  to  questions  of  law.  James  A.  Banister 
Co.  V.  Kriger,  84  N.  J.  Law,  30,  85  Atl.  1027. 

Whether  the  court  could  allow  more  for  an  injury  to  an  ankle  than  the 


! 


§  249  workmen's  compensation  840 

and  be  based  upon  conclusions  of  law.  In  a  broad  sense  such  find- 
ings are  findings  of  fact,  and,  although  the  acts  provide  that  they 
shall  be  conclusive,  nevertheless  they  may  be  reviewed  in  so  far  as 
they  involve  the  determination  of  such  questions  of  law.^ 

The  Constitution  of  Rhode  Island  does  not  require  the  Supreme 
Court  to  review  the  findings  of  fact  of  the  justice  of  a  superior 
court.-  Where  the  presiding  justice  dismisses  the  petition  for 
compensation,  on  the  ground  that  there  can  be  no  recovery  for  an 
accident  occurring  outside  such  state,  without  making  any  findings 
of  fact  upon  the  evidence  adduced  before  him,  the  Supreme  Court 
on  appeal  has  no  jurisdiction  to  try  and  determine  the  facts  of  the 
case,  but  is  limited  to  a  consideration  of  the  point  of  law  upon  which 
the  petition  was  dismissed.^  Whether  circumstances  constituting 
such  "accident,  mistake,  or  unforeseen  cause"  as  will  excuse  failure 
to  give  notice  of  injury  exist  in  a  particular  case  is  a  question  of 
fact  not  reviewable  by  the  Supreme  Court.* 

On  appeal  in  New  York  from  a  decision  of  the  Appellate  Division, 

stipulated  compensation  for  loss  of  a  foot  was  a  question  involving  the  con- 
struction of  the  statute,  and  therefore  a  question  of  law  to  be  decided  on 
certiorari.    Rakiec  v.  Delaware,  L.  &  W.  R.  R.  Co.  (N.  J.)  88  Atl.  9.53. 

On  writ  of  error  to  review  a  judgment  afhruiing  an  award  of  the  Industrial 
Board,  the  Supreme  Court  was  authorized  to  examine  the  record  for  errors 
of  law  onlj%  and  where  there  was  evidence  fairly  tending  to  show  that  dece- 
dent's injuries  arose  out  of  and  in  the  course  of  his  employment  by  defend- 
ant, the  Supreme  Court  could  not  do  otherwise  than  affirm  the  judgment  of 
the  circuit  court.  Armour  &  Co.  v.  Indus.  Board  of  111.  (1916)  273  111.  590, 
113  N.  E.  138. 

1  Jillson  V.  Ross  (R.  I.)  94  Atl.  717.  Although  the  findings  of  the  court  of 
common  pleas  as  to  facts  in  workmen's  compensation  cases  are  conclusive  on 
appeal,  nevertheless  the  law  arising  upon  the  ascertained  facts  is  a  question 
for  the  court  reviewing  the  decision.  Hulley  v.  Moosbrugger,  88  N.  J.  Law, 
161,  95  Atl.  1007,  L.  R.  A.  1916C,  1203. 

2  (Wk.  Comp.  Act,  Laws  1912,  c.  831,  art.  3,  §§  6,  7)  Jillson  v.  Ross  (R.  I.) 
94  Atl.  717. 

3  Grinnell  v.  Wilkinson   (R.  I.)  98  Atl.  103. 

4  Donahue  v.  R.  A,  Sherman's  Sons  Co.  (R.  I.)  98  Atl.  109. 


841  SETTLEMENT  OF  CONTROVERSIES  §  250 

which,  though  affirming  the  finding  of  the  Commission,  is  not  unan- 
imous, the  Court  of  Appeals  may  consider  whether  there  was  any 
evidence  to  sustain  the  finding  of  the  Commission.^ 

Where  the  amount  of  the  judgment  was  arrived  at  by  applying 
the  law  to  special  findings  upon  the  duration  of  disability  and  the 
existence  of  permanent  partial  disability,  which  were  uninfluenced 
by  any  error  available  on  review,  no  defect  in  the  general  verdict, 
which  was  excessive  and  unsupported  by  the  evidence,  or  in  the 
other  findings,  can  justify  a  reversal."  Nor  is  the  refusal  to  strike 
out  of  the  petition  for  compensation  allegations  negativing  all  the 
anticipated  defenses  prejudicial  error,  where  it  appears  that  they 
could  not  have  affected  the  judgment.'^ 

The  court  is  not  bound  by  any  rule  adopted  by  the  Washington 
Commission,  where  the  construction  of  the  Act  is  involved  as  a 
matter  of  law.^  A  provision  that  in  all  court  proceedings  the  de- 
cision of  the  Department  shall  be  prima  facie  correct  does  not  apply 
to  the  Department's  decision  as  to  what  constitutes  a  "fortuitous 
fund,"  where  there  is  no  conflict  in  the  evidence.® 

§  250.     Decision 

Where  a  defendant  appeals  from  a  judgment  rendered  against 
him  under  the  Kansas  Act,  the  plaintiff  may  by  a  motion  to  dismiss 

5  Carroll  v.  Knickerbocker  Ice  Co.,  218  N.  Y.  435,  113  N,  E.  507,  reversing 
169  App.  Div.  450,  155  N.  Y.  Supp.  1. 

e  Oliyer  v.  Christopher,  98  Kan.  660,  159  Pac.  397. 

7  Id. 

The  refusal  to  strike  out  from  a  petition  for  compensation  the  allegation 
that  the  injury  was  the  result  of  the  employer's  negligence  in  furnishing  de- 
fective machinery,  as  tending  to  create  prejudice  in  the  minds  of  the  jury, 
was  not  material  error,  since  it  appeared  that  there  was  little  likelihood  of  its 
having  influenced  the  jury,  and  where  its  excessive  verdict  could  be  disre- 
garded, and  the  amount  of  compensation  determined  from  special  findings  up- 
on the  existence  and  extent  of  incapacity.     Id. 

8  (Laws  1911,  p.  345)  Zappala  v.  Indus.  Ins.  Com.,  82  Wash.  314,  144  Pac. 
54,  L.  R.  A.  1916A,  295. 

»  (Laws  1911,  p.  349,  §  3)  Id. 


§  250  workmen's  compensation  842 

raise  the  question  whether  the  questions  of  law  involved  are  so 
doubtful  as  to  require  the  filing  of  briefs ;  and  if,  upon  the  resulting 
hearing,  the  court  is  fully  satisfied  that  no  grounds  for  a  reversal 
exist,  an  affirmance  will  be  ordered.^"  An  injured  employe  brought 
an  action  asking  in  the  first  count  for  compensation  for  his  injury 
under  the  Workmen's  Compensation  Law,  and  in  the  second  count 
for  damages  for  pain  and  suflfering  and  for  disfigurement  of  his 
hand  proceeding  from  the  same  injury,  and  which  resulted  from 
the  negligence  of  the  defendant.  The  court  overruled  a  demurrer 
to  each  count  of  the  petition,  and  refused  to  require  the  plain- 
tiff to  elect  on  which  count  he  would  rely,  and  directed  the  parties 
to  proceed  to  trial  on  the  count  for  damages,  reserving  the  count  for 
compensation  for  future  consideration.  The  jury  were  instructed 
to  consider  the  case  as  one  based  upon  a  common-law  liability  for 
a  negligent  injury,  and  a  verdict  was  rendered  awarding  damages 
for  pain  and  suffering  and  disfigurement.  The  Supreme  Court  held 
that  while  there  was  some  evidence  tending  to  show  partial  disabil- 
ity, and  some  testimony  as  to  the  recent  earnings  of  the  plaintiff, 
the  verdict  rendered  could  not  be  treated  as  an  award  of  compensa- 
tion, and  that  no  judgment  could  be  entered  in  the  Supreme  Court 
for  any  sum  as  compensation.^^ 

A  showing  that  a  requirement  of  a  judgment  that  compensation 
be  paid  under  the  New  Jersey  Act  on  a  particular  day  of  the  week 
will  result  in  inconvenience  or  trouble  to  the  defendant  will  not  re- 
quire a  reversal  or  modification  of  the  judgment;  the  defendant's 
remedy  being  by  an  application  to  the  trial  court.^^ 

10  Cain  V.  National  Zinc  Co.,  94  Kan.  679,  146  Pac.  1165,  148  Pac.  251. 

11  McRoberts  v.  National  Zinc,  93  Kan.  364,  144  Pac.  247. 

12  Conners  v.  Public  Service  Electric  Co.  (1916,  N.  J.)  97  Atl.  792. 


8iS  SETTLEMENT  OF  CONTROVERSIES  §  251 

ARTICLE  VIII 

COSTS  AND  ATTORNEY'S  FEES 

Section 

251.  Taxation  of  costs, 

252.  Contract  for  fee. 

§  251.     Taxation  of  costs 

The  allowance  of  attorney's  fees  is  not  authorized  by  the  Minne- 
sota Act,  but  the  court  may  allow  statutory  costs,  although  desig- 
nated in  the  order  as  attorney's  fees.^^  Where  it  cannot  be  said  that 
an  appeal  prosecuted  by  the  insurer  was  prosecuted  without  any 
reasonable  ground,  "the  whole  cost  of  the  proceedings"  should  not 
be  charged  upon  the  insurer,  under  the  Massachusetts  Act.^*  The 
provision  of  the  New  Jersey  statute  that  "the  judge  of  the  court  of 
common  pleas  shall  *  *  *  determine  the  amount  of  compensa- 
tion to  be  paid  by  the  employe  or  his  dependents  *  *  *  ^q  ]^[g 
legal  adviser,"  and  that  "the  judge  shall  determine  the  amount  to 
be  paid  per  week  from  the  compensation  payment  on  account  of  the 
legal  fee  thus  awarded,"  it  is  contemplated  that  the  attorney's  fee 
be  paid  from  the  award. ^^  On  an  appeal,  under  the  Washington 
Act,  from  an  allowance  for  an  employe's  death,  the  Supreme  Court 
cannot  increase  the  attorney's  fee  allowed  in  the  superior  court.^® 
No  costs  can  be  recovered  in  an  action  against  a  city  of  the  second 
class  for  compensation  under  the  Kansas  Act,  where  no  claim  has 
been  presented  as  required  by  the  General  Statutes  of  that  state. ^'^ 

In  a  recent  case  the  Court  of  Appeals  of  New  York  states  that  it 

13  state  ex  rel.  Diamond  Drilling  Co.  v.  District  Court,  129  Minn.  423,  152 
N.  W.  838. 

14  In  re  Meley,  219  Mass.  136,  106  N.  E.  559. 

15  Diskon  v.  Bubb,  88  N.  J.  Law,  513,  96  Atl.  660. 

10  (Sess.  Laws  1911,  c.  54,  §  20)  Boyd  v.  Pratt,  72  Wash.  306,  130  Pac.  371. 
17  Knoll  V.  City  of  Salina,  98  Kan.  428,  157  Pac.  1167. 


§  251  workmen's  compensation  844 

regards  section  24  of  the  Act  of  that  state  as  mandatory,  and  that 
costs  will  be  awarded  "against  a  party  to  an  appeal  under  the  act 
whenever  we  determine  that  the  proceeding  has  not  been  brought 
upon  reasonable  ground.  Such  cases,  however,  are  exceptional.  In 
cases  involving  no  element  of  unreasonableness,  the  award  of  costs 
is  left  by  section  23  of  the  statute  to  the  discretion  of  the  court; 
and  ordinarily  in  the  exercise  of  that  discretion  costs  will  not  be 
awarded  against  an  unsuccessful  claimant  personally,  but  will  be 
charged  against  the  State  Industrial  Commission,  which  virtually 
represents  such  claimant  through  the  Attorney  General."  ^^  On  an 
unsuccessful  appeal  by  the  employer  or  insurer  from  an  order  of  the 
Appellate  Division  affirming  an  award  of  the  Commission,  the  af- 
firming order  made  by  the  Court  of  Appeals  should,  under  ordi- 
nary circumstances,  be  made  with  costs,  the  same  as  is  usually  done 
on  an  affirmance  of  a  final  order  in  a  special  proceeding.^^ 

In  California,  where  no  meritorious  defense  is  offered  at  the 
hearing,  and  the  payment  of  compensation  has  been  unreasonably 
delayed,  costs  will  be  allowed  to  the  applicant  in  the  discretion 
of  the  Commission.^"  The  Commission  has  stated  that,  when  the 
Act  becomes  better  known  to  employers  and  their  attorneys,  it  will 
be  the  policy  of  the  Commission  to  tax  the  costs  of  hearings  against 
the  defendant  in  cases  where  practically  no  evidence  is  introduced 
by  him  in  substantiation  of  the  defenses  raised,^^ 

18  (Consol.  Laws,  c.  67,  §§  23,  24)  Wilson  v.  C.  Dorflinger  &  Sons  (N.  T.) 
113  N.  E.  454,  amending  remittitur  on  appeal  from  an  order  (170  App.  Div. 
119,  155  N.  Y.  Supp.  857)  affirming  an  award  of  the  Commission,  wliicli  was 
reversed  (218  N.  Y.  84,  112  N.  E.  567). 

19  (Consol.  Laws,  c.  67,  §  23)  In  re  Petrie,  In  re  Oneida  Steel  Pulley  Co. 
(N.  Y.)  113  N.  E.  455. 

20  Yamasaki  v.  Commonwealth  Bonding  &  Casualty  Insur.  Co.,  1  Cal.  I.  A. 
C.  Dec.  658. 

But  in  Farmer  v.  Barber,  3  Cal.  I.  A.  C.  Dee.  21,  where  the  application  was 
without  merit  and  was  known  by  the  applicant  to  be  so,  costs  incurred  by 
the  defendant,  amounting  to  .$21.50,  were  assessed  to  the  applicant. 

21  Oaks  V.  Berkeley  Steel  Co.,  1  Cal.  I.  A.  C.  Dec.  218. 


845  SETTLEMENT  OF  CONTROVERSIES  §  252 

§  252.     Contract  for  fee 

Unless  a  contract  for  an  attorney's  fee  is  reasonable,  it  will  not 
be  approved  or  enforced.  A  contract  providing  that  an  attorney- 
shall  receive  50  per  cent,  of  the  compensation  has  been  held  unrea- 
sonable.^^ The  California  Commission  refused  to  approve  an  agree- 
ment between  the  injured  employe  and  the  attorney  employed  by 
him  that  the  latter  should  receive  as  compensation  for  his  services 
20  per  cent,  of  any  compensation  awarded,  subject  to  the  approval 
of  the  Industrial  Accident  Commission,  stating  that  the  compensa- 
tion allowed  by  the  Act  was  not  in  excess  of  the  needs  of  the  in- 
jured persons  or  their  dependents,  and  that  it  would  be  the  policy 
of  the  Commission  to  save  to  such  persons,  as  nearly  as  possible, 
the  entire  compensation  payable.  A  fee  of  $20  was  determined  to 
be  reasonable,  and  a  lien  given  upon  the  amount  awarded  applicant 
to  that  extent.^^ 

22  Oleskie  v.  Dodge  Bros.,  Mich.  Wk.  Comp.  Cases  (1916)  45. 

23  Keatley  v.  SMelds  &  Son,  1  Cal.  I.  A.  C.  Dec.  191. 


§  253  workmen's  compensation  846 


CHAPTER  IX 

ILLUSTRATIVE  SELECTED  FORMS 

Section 

253.  Forms  for  illustration  and  reference. 

254.  Notices — Acceptance,  rejection,  and  withdrawal. 

255.  Notices  to  be  posted,  and  certificate. 

256.  Notice  of  injury  or  claim. 

257.  First  report  of  accident. 

258.  Employer's  reports. 

259.  Agreements. 

260.  Application  for  adjustment  of  claim— Settlement  and  petition. 

261.  Answer  to  application. 

262.  Notice  of  hearing. 

263.  Arbitration. 

204.  Attending  physician's  certificate. 

265.  Proof  of  death,  and  certificate  authorizing  burial. 

266.  Subprena. 

267.  Petition  for  review. 

268.  Notice  of  hearing. 

269.  Lump  sum  settlements. 

270.  Petition  to  terminate  or  modify. 

271.  Receipt  and  release. 

272.  Insurance — Notices. 

§  253.     Forms  for  illustration  and  reference 

The  following  forms  are  given  by  way  of  illustration  and  for 
reference  in  connection  with  the  propositions  hereinbefore  discuss- 
ed and  involved  in  the  cases  cited.  They  cover  the  common  essen- 
tials of  the  principal  forms  prescribed  by  the  officers  vested  with 
the  power  of  administering  the  various  Acts,  or  by  the  Acts  them- 
selves. Though  scarcely  any  two  of  the  forms  prescribed  and  in 
use  under  the  various  Acts  are  identical  in  the  language  used,  they 
differ,  as  a  rule,  only  in  minor  details.  Publication  of  all  these 
forms  would  require  several  hundred  pages  and  serve  no  useful  pur- 
pose, in  view  of  the  fact  that  those  forms  needed  in  each  state  may 
be  readily  procured,  generally  free  of  charge,  on  application  to 
the  proper  administrative  officers. 


I 


847  ILLUSTRATIVE   SELECTED  FORMS  §    254 

§  254.     Notices — Acceptance,  rejection,  and  withdrawal 

Employer's  Notice  of  Acceptance 

To  the  Employ§s  of  the  Undersigned,  and  the (Administrative  Officers) : 

You  and  each  of  you  are  hereby  notified  that  the  undersigned  elects  to 
accept  the  terms,  conditions  and  provisions  to  provide,  secure  and  pay  com- 
pensation to  employes  of  the  undersigned  for  Injuries  received  as  provided 
in  the  Workmen's  Compensation  Act,  and  that  the  undersigned  elects  to  pay 
damages  for  personal  injuries  received  by  such  employe  under  the  terms,  con- 
ditions and  provisions  of  said  Act. 


By  . 

State  of ,       ^ 

County  of  .J^^' 

The  undersigned  being  duly  sworn  deposes  and  says  that  a  true,  correct  and 

verbatim  copy  of  the  foregoing  notice  was  on  the day  of ,  19 — , 

posted  at  (state  where  posted). 


Subscribed  and  sworn  to  before  me  by this day  of ,  19 — . 

(Seal.)  ,  Notary  Public. 

Employe's  Notice  oe  Acceptance 

To  the  Employer  of  the  Undersigned,  and  the (Administrative  Officers) : 

You  and  each  of  you  are  hereby  notified  that  the  undersigned  makes  vol- 
untary election  to  accept  the  terms,  conditions  and  provisions  to  provide,  se- 
cure and  pay  compensation  to  employes  for  injuries  received  as  provided  in 
Workmen's  Compensation  Act  and  that  the  undersigned  elects  to  liquidate 
claims  for  personal  injuries  received  by  the  undersigned  as  an  employ§  of 
,  under  the  terms,  conditions  and  provisions  of  said  Act. 


State  of  ,       "I 

County  of  .  J^^ ' 

The  undersigned  being  duly  sworn  deposes  and  says  that  a  true,  correct 

and  verbatim  copy  of  the  foregoing  notice  was  on  the  day  of , 

19 — ,  served  upon (employer's  name). 


Subscribed  and  sworn  to  before  me  by this day  of ,  19 — . 

(Seal.)  ,  Notary  Public. 


Employer's  Election  Not  to  Become  Subject  to  Workmen's 

Compensation  Act 

Industrial  Commission, 


Take  notice  that  the  undersigned  employer  of  labor  in  the  state  of 


i 


254  workmen's  compensation  848 


hereby  elects  not  to  accept  the  provisions  of  the  Workmen's  Compensation  Act.  1 

Dated  at this day  of ,  1^— .  ^ 

By  '- . 


(P.  0.  Address.) 


Employer's  Notice  of  Withdrawal  from  Operation  Under 
Workmen's  Compensation  Act 

Industrial  Commission, 


Take  notice  that  the  undersigned  employer  of  labor  in  the  state  of 

hereby  withdraws  his  {her)  (its)  election  to  become  subject  to  the  provisions 
of  the  Workmen's  Compensation  Act  of  the  state  of  ■-. 

Dated  at this day  of ,  19—. 


By 


To 


(P.  0.  Address.) 


Notice  of  Employe  Upon  Entering  Employment  That  He 

Elects  Not  to  be  Subject  to  the  Workmen's 

Compensation  Act 

{Write  name  of  employer  plainly  on  above  line.) 

{Write  address  of  employer  plainly  on  above  line.) 

You  will  take  notice  that,  being  about  to  enter  your  employ,  I  elect  not  to 
be  subject  to  the  provisions  of  the  Workmen's  Compensation  Act  of  the  state 

of . 

{Employ^  

{Address)  ■ — • 

Dated  at this day  of ,  19 — . 


849  ILLUSTRATIVE   SELECTED   FORMS  §    255 

§  255.     Notices  to  be  posted,  and  certificate 

In  accordance  with  the  provisions  of  section  6,  part  I,  of  the 
Michigan  Act,  the  Industrial  Accident  Board  prepared  the  follow- 
ing, printed  on  cardboard,  12x20  inches  : 

Notice  to  Employes 

All  workmen  or  operatives  employed  by  the  undersigned  in  or  about  this 
establishment  are  hereby  notified  that  the  employer  or  employers  owning  or 
operating  the  same  have  filed  with  the  Industrial  Accident  Board,  at  Lansing, 
notice  of  election  to  become  subject  to  the  provisions  of  Act  No.  10  of  Public 
Acts,  Extra  Sessions  1912. 

(This  Act  is  commonly  known  as  the  Workmen's  Compensation  Law.) 

You  are  further  notified  that  unless  you  serve  written  notice  on  your  em- 
ployer of  your  election  not  to  come  under  the  law.  the  act  will  immediately 
apply  to  you. 

If  you  do  notify  your  employer  that  you  elect  not  to  come  under  said  act, 
you  may  afterwards  waive  such  claim  by  a  notice  in  writing,  which  shall  take 
effect  five  days  after  it  is  delivered  to  the  employer,  at  the  expiration  of 
which  period  the  law  will  apply  to  you. 

Injury  Not  Resulting  in  Death — Notice  of 

An  employe  who  has  been  injured  in  the  course  of  his  employment  and 
whose  incapacity  extends  over  a  period  of  two  weeks  (sec.  3,  part  2)  shall 
serve  written  notice  of  such  injury  on  his  employer  (from  whom  blank  forms 
may  be  obtained),  which  notice  shall  be  signed  by  the  person  injured  and  shall 
state  in  ordinary  language  the  time,  place  and  cause  of  the  injury  (sec.  16, 
part  2), 

Injury  Resulting  in  Death — Notice  of 

When  death  results  from  an  injury  received  by  an  employe  in  the  course 
of  his  employment,  notice  shall  be  served  by  his  dependents,  or  by  a  person 
in  their  behalf  (sec.  16,  part.  2). 

Limit  of  Period  of  Notification. 

Notice  of  the  injury  shall  be  given  to  the  employer  within  three  months 
after  the  happening  thereof,  and  claim  for  compensation  shall  be  made  within 
six  months,  or  in  case  of  death  or  in  the  event  of  physical  or  mental  inca- 
pacity, notice  shall  be  given  within  six  months  after  the  death  or  removal  of 
such  mental  or  physical  incapacity.  No  proceeding  for  compensation  under 
this  Act  shall  be  maintained  unless  these  rules  are  observed  (sec.  15,  part  2) 
Date . 

,  Employer. 

HoN.CoMP. — 54 


§  255 


workmen's  compensation 


850 


The  Industrial  Accident  Board  has  prepared  the  following  cer- 
tificate, to  be  executed  by  the  employer  and  filed  with  the  Board, 
showing  that  such  notices  were  actually  posted  as  required  by  the 
section  of  the  law  above  quoted.  This  certificate  should  be  prompt- 
ly filed  with  the  Board,  and  the  signature  to  the  same  is  required 
to  be  that  of  the  employer  himself  or  if  made  by  an  officer  or  agent 
of  a  corporation,  the  appropriate  designation  of  the  official  charac- 
ter of  the  person  signing  must  accompany  signature. 

Certificate: 


Industrial  Accident  Board,  Lansing,  Mich. 
We  do  hereby  certify  that  on  the  


day  of 


we  posted  in  the 


most  prominent  places  in  and   around  our  place  of  business,   viz. :    

{insert  workrooms,  mines,  stationft,  ete.)  ({live  7iutnbcr)  printed  notices 

of  our  acceptance  of  the  provisions  of  Act  No.  10  of  Public  Acts  Extra  Ses- 
sion 1912,  the  same  being  notice.';  furnished  by  the  Industrial  Accident  Board ; 
and  wo  further  certify  that  said  notices  were  conspicuously  posted  and  se- 
curely fastened. 
Dated  at ,  day  of ,  19 — . 


§  256.     Notice  of  injury  or  claim 

To  (Name  of  Employer) : 

You  will  take  notice  that  according  to  the  Workmen's  Compensation  Act 


of 


(state). 


(claimant)   hei"eby   makes   claim   for   compensation 


for  injury  (or  gives  notice  of  injury  for  which  compensation  will  be  claimed), 

received  by  (icorkman),  (post   office  address),  while  in  your 

employ  at  (place).     The  accident  occurred  (date),   at  

(place).     The  cause  of  the  injury  is  as  follows:    .     The  nature  and  de- 


gree of  the  injury  is  as  follows : 
Idatc]). 


(and  said  injury  resulted  in  death 


(Name   of   claimant.) 


Dated  at 


this 


day  of 


-,  19—. 


(Address  of  claimant.) 


851  ILLUSTRATIVE   SELECTED   FORMS  §    257 

§  257.     First  report  of  accident 

Name  of  person  furnishing  information  . 

Position .     Date  of  report (month  and  day)  19 — . 

(1)  Employer's  name  {individual  or  firm  name). 

(2)  Address (St.  No.,  city  or  town). 

(3)  Under  the  Compensation  Act {yes  or  no).     (4)  Nature  of  business 

or  industry  . 

(5)  Location  of  plant  or  place  where  accident  occurred (city  or  town). 

(6)  Name . 

(7)  Address {St.  No.,  city  or  tmvn). 

(8)  Age .     (9)  Sex  .     (10)  Married  or  single  . 

(11)  Nationality  .     (12)  Speak  English  {yes  or  no). 

(13)  If  not,   what  language   .     (14)  Did   injured   person   make   use   of 

guards  or  safety  devices  {yes  or  no).     (15)  Was  injury  due  to 

willful  misconduct  on  part  of  employe  {yes  or  no).     (16)  What 

was  the  occupation  of  the  person  injured  {have  in  mind  work 

done). 

(17)  Length  of  experience  here  in  this  occupation  .     Elsewhere  in  this 

occupation  .     (18)  Piece  or  day  worker  . 

(19)  Working  days  per  week .    Wages  per  day .    Per  week . 

(20)  Date  of  accident ,  .  M.     (21)  Day  of  week  .     (22)  Hour 

of  day  when  injured  began  work  . 

(23)  What  was  it {give  the  maker's  name  as  well). 

(24)  Could  injured  person  start  and  stop  the  machine {yes  or  no). 

(25)  How  .     (26)  Part  causing  the  accident  .     (27)  Was  machine 

provided  with   safeguards (yes   or  no).     (28)  Were  safeguards 

properly  attached  at  the  time  of  the  accident .     (29)  If  not,  who 

removed  them  . 

(30)  Describe  the  guard  or  safety  device ■ — ^ 


(31)  How  did  the  accident  occur 


(32)  What  would  you  suggest  to  prevent  similar  accidents 


Check  the  one  or  ones  applicable. 

(33)  At  hospital  .     (35)  At  home  . 

(34)  At  factory  .      (36)  At  whose  expense  . 

(37)  Was  accident  fatal  {yes  or  no;    state  exactly  the  part  of  person 

injured  and  nature  of  injury). 

(38)  Has  the  accident  resulted  in  any  permanent  physical  injury  {yes 

or  no). 

(39)  Disability :   Total {yes  or  no).    Partial {yes  or  no).    Proba- 

ble duration  in  days . 


I 


257 


workmen's  compensation 


852 


(40)  Attending  physicians  ^ 


(\um<)  (Adilrcss) 

(41)  Dependents  (give  name  of  dependents  in  fatal  cases  only) : 

{Xamc)  (l.w)  (Relationship)  (Address) 


(42)  Remarks 


§  258.     Employer's  reports 

Employer's  First  Report  of  Injury 


Commission  of  the  State  of 


Employer's  name 


Business 


INIain  office  :   Street  and  No. 


City  or  town 


City  or  town  in  whicli  injury  was  sustained  — 

Employe's  name .     Street  and  No. 

Age  .     Sex  .     Married  or  single 


County 


City  or  town 


American   or   foreign 


born 


Occupation  when  injured  (machinist,  carpenter,  laborer,  etc.) 

weekly  wage  .$ . 

Date  of  injury .     Day  of  week . 

Date  injured  had  to  leave  work  on  account  of  injury 

Describe  in  full  how  injury  was  sustained 


Average 


State  exactly  part  of  person  injured  and  extent  of  iujury- 


If  Injured  has  Recovered,  Fill  in  Below 

Give  exact  date  injured  employt'  was  physically  able  to  return  to  work  — 
Give  the  actual  number  of  working  days  injured  was  absent  from  work. 

of  days . 

Any  permanent  injury,  describe  fully  . 

Payments  of  compensation  $ .     No.  of  weeks  . 


No. 


Payments    for    physicians    $- 


Hospital    $- 


Other    medical    aid 


Did  your  insurance  carrier  make  any  payments  in  this  case? 
Give  the  name  of  your  insurance  company . 


If  Injury  was  Fatal,  Fill  in  Below 
— .     Payments  for  burial  expenses  $ 


Date  of  death 

If  deceased  left  dependents,  state  relationship  of  each 
Date  of  report .    Made  out  by . 


853  ILLUSTRATIVE  SELECTED  FORMS  §  258 

(Another  Form) 

Employer's  First  Rkport  oi^  Injury 
• Commission  of  the  State  of 


Emploj'er's  name . 

OiliLe   address   {street   and   niunher,   city   or   town   and 

county). 
Business,  goods  produced,  work  done  or  kind  of  trade  or  trans- 
portation   . 

Location   of  plant   or  place  of  work   where  accident  occurred 

Employer,       {street  and  number). 

Place  and    I^i  wtiat  city  or  town? .    County . 

Tune         Date  of  accident 19— ;   hour  of  day |p"  JJ* 

Did  accident  happen  on  premises?  .     If  away  from  the 

plant,  state  where .     Was  employe  injured  in  course  of 

employment? . 

If  employe  did  not  leave  work  on  day  of  injury,  on  what  day  did 
incapacity  begin? . 

Give  full  name  of  injured  employe . 


Address {street  and  numher,  city  or  town  and  county). 

The  Sex .     Age .     Speak  English? .     If  not,  what 

Injured  language? 


Employe 


Occupation  when  injured?  .     Married  or  single?  . 

Was  injured  employe  doing  his  regular  work?  .     If  not,, 

what  work?  . 

Describe  in  full  how  the  accident  occurred 


-^  "^  State  nature  and  extent  of  injury, 

Injury        {if  amputation  tvas  necessary,  state  what  part  ivas  amputated). 
Name  of  machine,  tool,  appliance,  etc.,  in  connection  with  which 
accident  occurred? 


Hand  feed  or  mechanical? 


^  ,     Part  of  machine  on  which  accident  occurred? ■. — . 

ause  OJ-      yv'hnt  guard,  safety  appliance  or  regulation  in  connection  with 
Injury            f]^[^  machine  is  it  possible  to  provide  that  might  have  pre- 
vented this  accident?  . 


Was  medical  attendance  provided  by  you? 

How  soon  after  accident?  . 

Name  and  address  of  physician 


Ti/f   J-     J      To  what  hospital  was  employe  sent? 

l\l  eaical      Address  of  hospital . 

Attendance  if  ^ot  sent  to  hospital,  where  is  he? 


Are  you  still  providing  medical  attendance? . 

What  will  be  the  probable  length  of  disability? {give  your 

best  estimate). 


258 


WORKMEN  S   COMPENSATION 


854 


How   luuuy   workiug  days  per  week?  

.     Wages  per  day  at  time  of  accident? 


±iours  per  day? 


Wages        How  long  has  employe  received  above  rate  of  wages? 


Notice  of 
Injury 

Signed,  this 


Was  the  injured  employe  per  diem  or  piece   worker?      {Checlc 
which.) 


Were  you  notitied  by  the  injured  employe  of  his  injury?  . 

If  so,  when?  . 

Did  you  or  your  managing  superintendent  in  charge  of  the  work 

of  injured  employe  at  time  of  injury  have  actual  knowledge 

of  such  accident  and  injury?  . 


day  of 


-,  19—,  at 


Emploj^er's  Name 

Signed  by  . 

Ofiicial  Title  


Received  this 


day  of 


19— 


Employer's  Supplemental  or  Final  Report  oe  Injury 


Commission  of  the  State  of 


Employer's  name 


City  or  town 


Main  Office:    Street  and  No. 

Employe's  name .     Date  of  injury  . 

When  was  injured  employe  physically  alile  to  return  to  work? . 

The  actual  number  of  working  days  injured  was  absent  from  work  . 

Number  of  days  employed  per  week  .     Can  injured  do  the  same  work 

as  before  the  injury?  . 

Any  permanent  injury,  describe  fully  . 


Amounts  paid   for  physician's   services  $- 
aid  $ . 


Hospital  or  other   medical 


Amounts  of  compensation  paid  $- 


No.  of  compensation  weeks 


Remarks  concerning  your  method  of  computing  rate  of  compensation 


If  Injury  was  Fatal  Fill  in  Below 
— .     Payments  for  burial  expenses  $ — 


Date  of  death  

If  deceased  left  dependents,  give  relationship  of  each. 


Name 


Age 


Relationship 


Amounts  paid  in  death  benefits  $ 

Date  of  report .     Made  out  by 


(offlcial  position). 


855  ILLUSTRATIVE   SELECTED  FORMS  §    259 

§  259.     Agreements 

Agreemejnt  in  Regard  to  Compijnsation 
We, (name  of  injured  employe),  residing  at  city  {or  town)  of , 


and  (employer  or  insurer),  have  reached  an  agreement  in  regard  to 

compensation  for  the  injury  sustained  by  said  employe  while  in  the  employ 

of  on  the  day  of  ,  19—, A.  M.   (or P.  M.) 

at . 

Cause  of  in.lury . 


Nature  and  extent  of  injury 


This  agreement  conforms  to  the  provisions  of  the  Workmen's  Compensation 
Act,  and  is  a  claim  for  compensation. 

It  is  agreed  that  the  average  weekly  wages  of  the  said  employe,  computed 

according  to  the  terms  of  the  Workmen's  Compensation  Act  are  $ and 

that  the  said  will  pay  said  employe  50  per  cent,  of  said  sum  within 

the  minimum  and  maximum  of  the  statute  or  $ per  week,  beginning 

.  19—.* 


Witnesses 


(Nam,e  of  injured  vniploi/c) 
By 


Dated  at  this  day  of  ,  19—. 

(Another  Form) 

Agreement  Between  Employer  and  Employe  as  to  Payment  oe 

Compensation 

—    Claimant, 


Respondent, 

Insurance  Carrier. 


We, (name  of  injured  employe),  residing  at  (street  and  nnm- 

her), (P.  0.),  and (name  of  employer),  have  reached  an  agreement 

in  regard  to  compensation  for  the  injury  sustained  by  said  employ*!,  and  sub- 
mit the  following  statement  of  facts  relative  thereto : 

*Note. — Here  add  appropriate  words  to  indicate  length  of  disability,  if  permanent  par- 
tial, permanent  total,  temporary  partial,  or  temporary  total,  if  known;  If  not,  add  "Dur- 
ing Disability."  If  death  claim,  add  words  to  indicate  nature  of  dependency  and  length  of 
time  during  which  payments  are  to  be  made.  If  amputations  or  within  schedule  of  injury, 
add  words  to  indicate  statutory  period. 


259 


workmen's  compensation 


856 


Said  injury  was  sustained  on 

Nature  of  injury  . 

Period  of  disability :   From  — 


19—,  at 


II. 


to 


19—,  at 


M, 


Employe's  average  weekly  wage  at  time  of  injury :    $ . 

Permanent  total  or  partial  disability   (If  injury  has  caused  a  permanent 
disaMlity,  gi/ve  acourate  description  of  same.) 


Terms  of  agreement  as  to  compensation :    .$ per  week  for  

(No.  of  icceks)  beginning ,  19 — . 

(//  disahiJitij  has  not  ended  at  time  this  agreement  is  filed,  give  estimate 

as  to  prohahle  date  employ^  will  he  ahle  to  resume  work.) 


8.  The  compensation  agreed  upon  herein,  as  above  set  forth,  is  in  an  amount 

equal  to  or  greater  than  is  provided  for  by  the  Workmen's  Compensa- 
tion Act. 

9.  Said  employer  has  furnished  for  said  employ^  all  medical  services,  etc., 

required  by  law  that  is  reasonably  necessary  in  the  treatment  of  said 
injury,  and  in  the  amount  or  value  as  shown  below: 


Nature  of  Expense 

Amount 

Nature  of  Expense 

Amount 

Medical    Services   ... 

Nursing    Services    

Hospital    Services    

The  foregoing  agreement  is  herewith  submitted  for  confirmation  and  ap- 
proval by  said  Commission. 
Signed  in  the  presence  of:  ■ . 


By 


(Employer) 


iEmployd) 


Memorandum  of  Settlement 


Employ^. 


Company. 


■ Employer. 

Liability  insured  at  time  of  injury  in  — 

Date  of  injury . 

The  injury  arose  out  of  and  in  course  of  the  employment,  the  employ^  at 
the  time  being  engaged  as  follows __^ 


Compensation  Act  at 


Employer  and  employe  were  both  under  the  — 
the  time  of  injury. 

If  either  party  filed  a  rejection  state  when  withdrawn  . 

Nature  of  injury  and  results : 

If  death,  date  of . 

Dismemberment (If  so  state  what  member  or  what  part  of  mem'ber.) 

Disability  (State  whether  temporary  or  permanent  and  whether  total 

or  partial.) 


857 


ILLUSTRATIVE  SELECTED  FORMS 


§  259 


Days  absent  from  work . 

Employe's  average  annual  earnings  were  )?- 
Average  weekly  wages  $- ;    daily  ,$ — 


How  many  days  employed  during  week  . 

State  how  averages  of  either  annual,  weekly  or  daily  wages  were  made. 

Amount  of  medical,  surgical,  hospital  relief  supplied. 

Amount  of  comiieiisation  agreed  upon  .^' . 

Amount  paid  and  receipt  acknowledged  $ . 

Address  of  employer  . 

Address  of  employe ^. 

Dated  at this day  of ,  19 — . 


Filed . 

Returned  on  review 
Approved . 


Employer. 


Employe. 


Commission. 


Approval  of  Compe:nsation  Agreement 


Employe,  Dependent — ,  Personal  Representative. 

and 


Compensation  Agreement  No. 


Employer. 

,  19—. 

The  Workmen's   Compensation   Board   has   examined   compensation   agree- 
ment No.  between and  and  hereby  declares  it  to  be  in 

accordance  with  the  provisions  of  the  Workmen's  Compensation  Act,  and  to 
be  valid. 

Workmen's  Compensation  Board, 

(Seal.)  ,  Chairman. 

Attest:   ,  Secretary. 


Disapproval  of  Compe^nsation  Agre;eme)nt 


Employe,  Dependent — ,  Personal  Representative,    Claimant. 

and 


Employer. 


Compensation  Agreement 
No.  . 

,  19—. 


The  Workmen's   Compensation   Board   has   examined   compensation   agree- 
ment No.  between  and  and  hereby  declares  it  to  be  in- 


§  260  workmen's  compensation  858 

valid  as  not  being  in  accordance  with  the  provisions  of  the  Worlimen's  Com- 
pensation Act  in  the  following  particulars: . 


Workmen's  Compensation  Board, 

(Seal.)  ,  Chairman. 

Attest:   ,  Secretary. 


§  260.     Application  for  adjustment  of  claim — Settlement  and  pe- 
tition 

Commission  of  the  State  of 


Applicant — 

V. 


Claim  No. 


Application  for  Adjustment  of  Claim. 


Defendant — 

The  petition  of  the  above-named  applicant —  respectfully  shows  to  your 
Honorable  Commission  as  follows : 

I. 

That  on  the  day  of  ,  19 — ,  {name  of  person  injured) 

was  killed  {or  injured)  by  reason  of  an  accident  arising  out  of  and  in  the 
course  of  h —  employment  by  the  above-named  {name  of  employer). 

That  your  petitioner  is  the  person  injured  {if  applicnnt  is  a  dependent,  state 
relationship). 

II. 

That  a  question  has  arisen  with  respect  to  the  compensation  to  be  paid 
therefor  and  the  general  nature  of  the  claim  in  controversy  is  as  follows, 
to  wit:  (Give  the  date  that  employer  refused  to  pay  the  compensation  de- 
manded, and  state  briefly  the  exact  matter  in  dispute,  as  for  example:  (A) 
Employer  denies  liability  for  compensation ;  or,  (B)  A  dispute  has  arisen 
concerning  the  amount  or  duration  of  the  compensation  payable.) 

III. 

That  the  following  is  a  statement  of  particulars  relative  to  this  applica- 
tion : 


1.     Name  of  injured  em- 
ploy§. 
Address. 
Occupation. 
Age. 


859 


ILLUSTRATIVE  SELECTED  FORMS 


260 


Name  of  employer. 
Address. 

Place  of  business. 
Busiuess  address. 


Name  and  address  of 
all  other  parties  to 
this  application  and 
reason  why  each 
party  is  joined. 

Name  and  address  of 
employer's  insurance 
carrier,  if  known. 


4.     Place  of  accident. 


Nature  of  work  on 
which  Injured  per- 
son was  engaged  at 
time  of  accident. 


How  did  accident  oc- 
cur? (Describe  in 
detail.) 


Nature  of  injury.    (De- 
scribe in  detail.) 


Has  injured  person 
fully  recovered?  If 
so,  when? 

When  did  injured  per- 
son return  to  work? 


Particulars  of  disabil- 
ity, whether  total  or 
partial,  and  estimat- 
ed duration  thereof. 
If  death  resulted,  so 
state,  giving  date  of 
death. 


10.  Was  medical  and  sur- 
gical treatment  re- 
quired? 

Was  it  furnished  by 
employer? 

If  not,  did  employer 
have  opportunity  to 
furnish  it? 


260 


WORKMEN  S   COMPENSATION 


860 


11.  Names  and  addresses 
of  attending  physi- 
cians. 


12.  Wages  of  employ^  at 
time  of  accident. 
(State  whether  paid 
by  day,  week,  month, 
or  year.) 

How  long  did  injured 
person  work  for  this 
employer  at  this 
wage  prior  to  the 
accident? 

State  whether  employ- 
ment was  for  5^2'  6, 
or  7  days  per  week. 


dollars  per 


13.  Amount  injured  per- 
son is  earning,  or  is 
able  to  earn  in  some 
suitable  employment 
or  business  after  the 
accident. 


per  week;    ^ 


per  month. 


14.  Payment,  allowance  or 
benefit  received  from 
employer. 


for 

tendance. 


weeks'  medical  care  and  at- 


per    week   for 


weeks'    disability 


compensation. 


15.  Additional  amount 
claimed  as  compen- 
sation. 


for 

tendance. 


weeks'  medical  care  and  at- 


{Itemize  expenditures  made  "by  you  for  this 

purpose) 
per  week  for weeks'  disability. 


16.  When  was  the  employ- 
er notified  of  the  ac- 
cident? 


17.  If  employer  was  not 
notified  within  thir- 
ty days  after  date 
of  accident,  give  rea- 
son for  failure  to 
notify  him. 


861 


ILLUSTRATIVE  SELECTED  FORMS 


§  260 


IS.  li  application  is  filed 
to  adjust  claim  for 
death,  state  name, 
address  and  rela- 
tionship of  all  de- 
pendents. If  to  ad- 
just claim  for  medi- 
cal attendance  or 
funeral  expenses, 
state  name  and  ad- 
dress of  all  other 
such  creditors  and 
amount  of  claims,  if 
known. 


{In  case  of  death  of  employe  this  paragraph  must 

he  filled  out  completely) 
Name 

Address 

Name 


Address . 
Name  — 


Address . 
Name 


Address. 


IV. 

(Here  state  any  further  facts  that  may  be  desired) 


Wherefore  your  petitioner  prays,  that  the  above-named  defendant —  be  re- 
quired to  answer  this  petition,  that  a  time  and  place  be  fixed  for  liearing 
hereof  and  due  notice  thereof  given,  and  that  upon  such  hearing,  an  order 
or  award  be  made  by  your  Honorable  Commission  granting  such  relief  as 
the  said  applicant —  may  be  entitled  to  in  the  premises. 

Dated  at this day  of ,  19 — . 

(Signed)    . 

Address . 


Application  o?  De:pe;nde;nts  of  Deceased  Employe  to  the  In- 
dustrial Board  for  the  Adjustment  of  Claim  for 
Compensation 


Before  the  Industrial  Board  of  — 


Application  No. 


The  plaintiff —  respectfully  represent —  to  your  Honorable  Board  as  follows : 

1.     That  on  the day  of 19 — ,  died  as  a  proximate  re- 
sult of  personal  injuries  received  by  him  by  reason  of  an  accident  arising  out 


§  260 


workmen's  compensation 


862 


of  and  in  the  course  of  h —  employment  by  the  above  named  defendant  in 

{designate  the  employment  in  ichich  the  deceased  was  engaged  at  the 

time  of  the  injury). 


2.     That  said 


following  named  persons 


left  surviving  him  as  all  and  his  only  dependents  the 


Names. 

Age. 

Relationship. 

Wholly  or 

Partially 

Dependent. 

Address. 

3.  That  a  controversy  has  arisen  with  respect  to  the  compensation  to  be 
paid  therefor. 

That  the  general  nature  of  the  question  in  dispute  is  as  follows : 

(A)  The  defendant —  denies  liability  for  compensation,  or 

(B)  The  plaintiff —  and  defendant —  disagree  as  to  the  rate  of  compensa- 

tion payable,  or 

(C)  The  plaintiff —  and  defendant —  disagree  as  to  the  amount  of  eompen- 

tion  payable,  or 

(D)  The  plaintiff —  and  defendant —  disagree  as  to  the  duration  of  the 

time  for  which  compensation  is  payable. 

4.  That  the  following  is  a  statement  of  the  facts  relative  to  this  applica- 
tion: 

1.  Name  of  deceased  employ^  . 

Address  at  time  of  death . 

Occupation  . 

2.  Name  of  the  defendant  employer  . 

Address . 

Place  of  business — . 

Business  address 


3.     Names  and  addresses  of  all  other  parties,  if  any,  to  this  application,  and 
the  reason  why  such  parties  are  joined  : 


4.  Place  of  accident . 

5.  Nature  of  work  on  whicli  the  deceased  was  engaged  at  the  time  of  the 

accident 


6.     Description  of  accident  and  cause  of  injury 


7.  State  whether  medical  or  surgical  treatment  was  required 

8.  Was  it  furnished  by  the  employer? 


9.     Were  hospital  services  or  supplies  required? 


863  ILLUSTRATIVE   SELECTED   FORMS  §    260 

10.  Were  they  furnished  by  the  employer?  . 

11.  Name  of  attending  physician . 

Address . 

12.  Nature  of  injury  {describe  fiiUi/) 


13.  That  death  resulted  as  a  direct  and  proximate  result  of  said  injury  on 

the day  of ,  19 — ,  at  o'clock  m. 

14.  Particulars  of  disability  during  the  period  intervening  between  injury  and 

death,  whether  total  or  partial  and  duration  thereof 

15.  Average  earnings  of  the  deceased  prior  to  injury,  $ per  week. 

16.  Did  the  defendant  pay  the  burial  expenses  of  the  deceased?  .     If 

so,  state  the  amount  paid.     $ . 

17.  Payment,  allowance  or  benefit  received  from  employer  by  the  deceased 

during  period  of  disability  between  injury  and  death. 

a.  $ on  account  of  medical  care  and  attention,  hospital  services 

and  supplies. 

b.  $ per  week  for weeks  total  disability. 

c.  $ per  week  for weeks  partial  disability. 

18.  Additional  amount  claimed  as  compensation : 

a.  $ on  account  of  medical  care  and  attention,  hospital  services 

and  supplies. 

b.  $ per  week  for weeks  total  disability. 

c.  $ per  week  for weeks  partial  disability. 

d.  $ for  burial  expenses. 

19.  Notice   of  injury   was   served  on   the   employer   on   the  day   of 

,  19—. 

20.  If  notice  was  not  served  within  thirty  days  after  the  injury,  state  fully 

the  reasons  for  the  failure  to  do  so. 


Wherefore  the  plaintiff —  pray —  that  an  award  be  made  by  your  Honorable 

Board  granting  to such  relief  as  — h —  may  be  entitled  in  the  premises.. 

Dated  at  this  day  of  ,  19 — . 


Plaintiff- 


Address 


State  of ,       ^ 

County  of  .  j  ^^ ' 

The  undersigned  plaintiff,  being  duly  sworn,  upon  his  oath  says  that  the 
matters  set  out  in  the  foregoing  application  are  true. 


Subscribed  and  sworn  to  before  me,  this day  of .  19 — . 

,  Notary  Public. 

My  commission  expires  on  the day  of ,  19 — . 


§  260  workmen's  compensation  864 

Settlement  and  Petition — Minnesota  Form 

State  of  Minnesota,  \                                      District  Court 
County  of  .     J^^'  Judicial  District 

In  tlie  Matter  of  Compensation  for  Injury  ^ 

To ,  Employ^  I 

Against  ,  Employer] 

and ,  Insurer] 

The  undersigned,  being  the  only  parties  interested  in  the  above  entitled  mat- 
ter, hereby  petition  the  Court  for  approval  of  the  following  agreement  and 
settlement,  and  agree  and  represent  to  the  Court  as  follows : 

That  they  are  subject  to  the  provisions  of  Part  II  of  Chapter  467  of  the 
Laws  of  Minnesota  of  1913  and  Amendatory  Acts;  that  the  employ^  can 
(cannot)  read  and  understand  the  English  language. 

Employ^  address  . 

Employer's  address  . 

Employe's  age  .     Weekly  wage  at  time  of  injury  . 

Date  of  injury .     Hour  of  injury . 

Accident  occurred  at . 

Injuries  consisted  of 


Nature  of  disability . 

Therefore,  it  is  hereby  agreed  that  the  employg  is  entitled  to  and  shall  re- 
ceive compensation  for  said  injury  from  the  employer,  beginning ,  19 — , 

at  the  rate  of  $ per  week  during  disability  (or)  for weeks,  pay- 
able as  follows : 


all  subject  to  the  limitations  of  said  Act;    and  the  employe  agrees  to  give 
proper  receipts  for  each  payment  made  hereunder. 

The  employ.e  hereby  acknowledges  that  he  has  received  to  date  medical  and 
surgical  treatment  and  benefits  given  by  section  18,  Part  II,  of  said  Act,  and 
the  employer  agrees  to  continue  to  furnish  the  same,  if  any  be  necessary,  to 
the  extent  and  in  the  manner  required  by  said  section.  The  employe  agrees 
to  present  himself  for  examination,  or  if  physically  unable  to  do  so,  to  submit 
himself  to  examination  by  the  physician  or  physicians  designated  by  the  em- 
ployer, when  requested. 

This  settlement  is  substantially  in  accordance  with  sections  13  and  14  of 
said  Act.  When  all  payments  hereunder  have  been  made  the  employer  shall 
be,  and  hereby  is,  released  from  all  claims  on  account  of  said  injury,  under 
said  Act  or  otherwise.  This  settlement  contains  the  whole  agreement  between 
the  parties  hereto. 

Dated  this day  of ,  19 — . 

Witnessed  by  i ,  Employ^. 

,  Employer, 


By 


Insurer  of  Employer, 
By  . 


865  ILLUSTRATIVE  SELECTED  FORMS  §  261 

§  261.     Answer  to  application 

Answe^r  to  Application 
Industrial  Commission  of  


,  Applicant, 

V. 

,   Respondent. 

The  respondent  above  named  for  answer  to  the  application  herein  respect- 
fully shows : 

1.  (State  all  facts  in  application  that  are  admitted  not  to  he  in  dispute.) 

2.  (State  pertinent  facts  in  reply  to  application,  that  are  in  dispute.) 

3.  (State  such  additional  facts  as  viay  constitute  a  defense  or  partial  de- 

fense.) 

4.  Wherefor  the  respondent  prays  (stating  relief  asked), 

(Signed)  ,  Respondent. 

Special  Answer  to  Application  for  Adjustment  of  Claim  for 

Compensation 

Before  the  Industrial  Board  of 


Plaintifie- 


Application  No. 


Defendant — 

The  defendant — ,  employer,  for  special  answer  to  the  application  for  the 
adjustment  of  the  claim  for  compensation  in  the  above  entitled  cause,  says : 

I. 
That  the  injury  (or  death)  of (name  of  employ^),  for  which  compen- 
sation is  claimed  by  said  application,  was  due  to: 

1.  The  wilful  misconduct  of  said  employ^  in  this,  to  wit: 

2.  The  intoxication  of  said  employe. 

3.  The  wilful  failure  (or  refusal)  of  said  employe  to  use  a  safety  appliance. 

4.  The  wilful  failure  (or  refusal)  of  said  employ^  to  perform  the  following 

duty,   required  by  statute:    (Rare  specify  the  duty  and  designate  the 
statute  requiring  it.) 

II. 
That  no  compensation  should  be  awarded  upon  said   application  for  the 
reason  following,  to  wit :   (Here  state  the  facts  constituting  any  other  defense 
of  confession  and  avoidance.) 


Defendant — . 
HoN.CoMP. — 55 


§  262  workmen's  compensation  866 

§  262.     Notice  of  hearing 

Notice  of  Hearing 
Industrial  Accident   Commission,   Claim  Department 

,  Claimant. 

,  Employer. 

,  Insurer. 

,  lf>-. 

To  the  parties  above  named  and  to  each  of  them : 

Notice  is  hereby  given  that  in  the  matter  of  ,  injured  ,  19 — , 

while  in  the  employ  of a  hearing  has  been  requested  by  parties  inter- 
ested, on  the  following  grounds  : 


This  hearing  will  be  conducted  by  under  the  authority  of  the  Com- 
mission on ,  A.  D.  19 — ,  at o'clock, M.,  at ,  County 


of ,  State  of . 

Please  accept  this  notice  to  be  present  or  represented  if  you  so  desire,  and 
notify  the  Commission  if  you  have  any  witnesses  whom  you  desire  to  have 
summoned ;  also  sign,  detach  and  mail  to  this  Commission  the  attached  form 
of  acknowledgment 

Industrial  Accident  Commission 
of  the  state  of  ■ . 


Secretary 


Acknowledgment  oe  Notice 


Plan  No. 


Notice  of  hearing  in  the  case  of .  Claim  No.  ,  to  be  conducted 

under  authority  of  the  Industrial  Accident  Commission  at (city,  street 

and  number)  County  of ,  State  of ,  on  the day  of , 

A.  D.  19 — ,  at  the  hour  of M.,  is  hereby  acknowledged  this day 

of ,  A.  D.  19—. 


867  ILLUSTRATIVE  SELECTED  FORMS  §  263 

§  263.     Arbitration 

Order  for  Arbitration 


Applicant, 


Respondent(s). 

The  notice  and  application  of the  above  named  applicant,  for  an 

adjustment  of  claim  in  the  above  named  matter  having  been  presented  to 
the  Industrial  Accident  Board,  and  due  consideration  thereof  having  been 
had,  and  it  appearing  to  the  Board  that  the  arbitration  prayed  for  by  said 
applicant  should  be  had ;  it  is  ordered  that  the  matters  in  difference  between 
said  applicant  and  said  respondent  mentioned  in  the  notice  and  application 
filed  herein  be  adjusted  and  determined  by  arbitration  under  the  provisions 
of  the  Workmen's  Compensation  Act  and  that  said  arbitration  be  held  at 

in  the  town  of ,  County  of ,  State  of ,  on  the 

day  of ,  19 — ,  commencing  at o'clock  in  the noon,  and  that 

of  the  Industrial  Accident  Board  be  and  he  is  hereby  appointed  and 

designated  as  chairman  of  the  committee  to  be  formed  for  such  arbitration. 
It  is  further  ordered  that  due  notice  be  given  to  said  applicant  of  the  time 
and  place  of  such  arbitration,  together  with  request  and  notice  for  said  ap- 
plicant to  select  one  member  of  said  arbitration  committee ;  and  that  like  no- 
tice be  given  to  said  respondent  together  with  like  notice  and  request  that  said 
respondent  choose  one  member  of  said  arbitration  committee. 

(Seal.)  ,Chairman. 

Dated  and  entered  this day  of ,  A.  D.  19 — . 

Notice  of  Appointment  of  Member  of  Committee  of  Arbitra- 
tion 


Applicant, 


Respondent(s). 

To  the  Industrial  Accident  Board — Gentlemen : 

You  are  hereby  notified  that ,  whose  postoffice  address  is ,  has 

been  chosen  as  a  member  of  the  committee  of  arbitration  in  the  above  entitled 
matter  by  the  undersigned. 


(Applicant.) 


(Respondents.) 
Dated  at this day  of ,  19 — . 


263  workmen's  compensation  868 

Award  of  Arbitration 


Applicant, 


Respondent(s). 

Notice  and  application  for  adjustment  of  claim  for  compensation  having 
been  filed  with  said  Board  in  the  above  entitled  matter,  and  thereafter  said 
Board  having  requested  both  of  the  parties  to  appoint  their  respective  repre- 
sentatives on  the  committee  of  arbitration,  and  said  committee  of  arbitration 

having  been  duly  formed,  consisting  of  ,  representing  said  applicant, 

and  ,  representing  said  respondent(s),  and  ,  member  of  the  In- 
dustrial Accident  Board,  as  chairman  thereof ;    and  said  matter  having  come 

on  to  be  heard  before  the  aforesaid  arbitration  committee  at  ,  in  the 

city  of  ,  county  of  and  State  of  ,  on  the  day  of 

■ ,  19 — ,  at o'clock  in  the noon,  and  after  hearing  the  proofs 

and  allegations  of  the  said  applicant(s)  and  said  respondent(s),  and  said  com- 
mittee having  made  careful  inquiry  and  investigation  of  said  matter  and  being 
fully  advised  in  the  premises,  doth  find,  determine  and  adjudge  that  the  said 

applicant, ,  is entitled  to  receive  and  recover  from  said  respond- 

ent(s),  ,  the  sum  of  dollars  per  week  for  a  period  of  

weeks,  from  the  day  of  ,  19 — ,  and  that  said  applicant  is  en- 
titled to  receive  and  recover  from  said  respondent(s)  on  this  date dol- 
lars, being  the  amount  of  such  compensation  that  has  already  become  due  un- 
der the  provisions  of  law,  the  remainder  of  said  award  to  be  paid  to  said 

,  applicant,  by  said  respondent(s)  in  weekly  payments,  commencing  one 

week  from  the  date  of  the  award. 

Committee  of  Arbitration, 

By  , 

Chairman. 


Dated  and  entered  this day  of ,  A.  D.  19 — . 

In  a  considerable  number  of  cases,  the  facts  surrounding  the  in- 
jury are  not  in  dispute,  the  only  matter  of  uncertainty  being  the  ap- 
plication of  the  law  to  such  facts  and  conditions.  Frequently  in 
such  cases  the  parties  desire  to  submit  to  the  Board  directly  the 
legal  questions  in  dispute,  waiving  arbitration  and  obtaining  a 
speedy  decision  of  the  full  Board  thereon.  For  the  purpose  of  facil- 
itating this  practice  the  Michigan  Board  has  prepared  the  follow- 


869  ILLUSTRATIVE   SELECTED   FORMS  §    263 

ing  form  for  stipulating  the  facts  and  submitting  the  matter  directly 
to  the  full  Board,  viz. : 

Stipulation,  and  Waiver  o^  Arbitration 


Applicant, 


Respondent  (s). 

The  facts  in  ttiis  case  being  undisputed  and  the  only  matter  in  difference 
between  the  parties  hereto  being  the  construction  and  application  to  said  facts 
of  the  Worlsmen's  Compensation  Law,  being  Act  No.  10,  Public  Acts  1912,  ex- 
tra session,  and  the  parties  hereto  desiring  to  obtain  a  decision  of  said  mat- 
ter by  the  full  board  without  resorting  to  arbitration,  do  hereby  stipulate  and 
agree  as  follows : 

1.  That  the  accident  to  the  employ^,  upon  which  the  claim  for  compensa- 
tion in  this  cause  is  based,  occurred  on  the  — day  of  ,  19 — ,  in 

the  town  of ,  county  of  ,  State  of  Michigan,  and  that  the  same 

arose  out  of  and  in  the  course  of  his  employment.  That  the  character  and 
nature  of  the  injury  and  the  result  thereof  is  as  follows  (state  in  detail  the 
nature  of  the  injury,  disahility  or  death  resulting,  etc.): 


2.     That  the  facts  relating  to  the  wages  of ,  said  employg,  are  as  fol- 
lows : . 


(If  average  iceekly  loage  is  nndisputed,  so  state;  if  disputed,  state  all  material 

facts  relating  to  same.) 


3.    The  other  material  facts  in  said  cause  not  included  in  paragraphs  1  and 
2  are  as  follows : 


4.  That  the  arbitration  of  the  matters  in  difference  between  the  parties 
hereto,  provided  for  in  said  Workmen's  Compensation  Law,  be  and  the  same 
is  hereby  waived,  and  the  decision  of  said  matters  is  hereby  submitted  to  the 
Industrial  Accident  Board,  sitting  as  a  full  board,  the  same  as  if  this  cause 
had  proceeded  to  arbitration  under  said  law,  and  the  decision  on  arbitration 
therein  had  been  appealed  from  and  said  cause  thereby  brought  before  the 
full  board  on  appeal  from  such  decision.     It  is  further  stipulated  and  agreed 


§  263  workmen's  compensation  870 

that  the  decision  of  said  board  in  this  cause  pursuant  to  this  stipulation,  and 
based  upon  the  facts  set  forth  herein  shall  be  valid  and  binding,  and  shall 
have  the  same  validity,  force  and  effect  as  if  said  cause  had  proceeded  to 
arbitration  in  due  course,  and  was  brought  before  the  full  board  on  appeal 
duly  taken  from  the  decision  of  an  arbitration  committee  therein. 

In  witness  whereof  the  parties  hereto  have  signed  this  stipulation  at 

in  the  county  of ,  State  of  Michigan,  this day  of ,  19 — . 


(Applicant.) 
Signed  in  presence  of  . 


(Respondents.) 


State  of  Michigan, 
County  of  .  j"^^* 

On  this day  of ,  19 — ,  before  me ,  a  notary  public  in  and 

for  said  county  personally  appeared  ,  known  to  me  to  be  the  persons 

described  in  and  who  signed  the  foregoing  stipulation,  and  acknowledged  that 
they  signed  the  same  as  their  free  act  and  deed.  And  I  further  certify  that  I 
read  over  all  of  said  stipulation  to  said  persons,  and  fully  acquainted  them 
with  the  contents  thereof  before  the  same  was  acknowledged  and  signed  by 
him  (them). 


Notary  Public. 
My  commission  expires  the  day  of ,  19 — . 

State  of  Michigan, 
County  of  . 

On  this  day  of  ,  19 — ,  before  me  ,  a  notary  public  in 

and  for  said  county  personally  appeared ,  known  to  me  to  be  the  person 

who  signed  the  foregoing  stipulation  on  behalf  of ,  the  employer  therein 

mentioned,  and  acknowledged  that  he  executed  the  same  on  behalf  of  said 

,  being  duly  authorized  so  to  do,  and  that  the  same  is  his  free  act  and 

deed  as (state  position  or  office)  for  said  employer. 

,  Notary  Public. 

My  commission  expires  on  the day  of ,  19 — . 


AppeaIv  from  Decision  of  Arbitration  Committf^ 

The  decision  of  an  arbitration  committee  in  Michigan  will  stand 
as  the  decision  of  the  Industrial  Accident  Board  unless  a  claim  for 
review  is  filed  by  either  party  to  the  cause  within  seven  days.    The 


871  ILLUSTRATIVE  SELECTED  FORMS  §  264: 

act,  however,  gives  the  Board  power  to  grant  further  time  in  which 
to  claim  such  review  if  sufficient  cause  be  shown.  The  Board  has 
prepared  the  following  form  for  making  application  for  review : 

STATE  OF  MICHIGAN 

Industrial  Accident  Board 

Lansing 

Application  fob  Review  of  Claim  before  Full  Boabd 

To  the  Industrial  Accident  Board,  Lansing,  Mich. 

Gentlemen :  The  undersigned,  as  provided  in  Part  3,  Sec.  8,  of  Act  No.  10, 
Public  Acts  1912,  makes  application  for  a  review  of  the  findings  of  the  Com- 
mittee on  Arbitration  in  the  claim  of  v.  . 


This  claim  for  review  is  based  on  the  following  grounds ; 


Dated  at this  day  of ,  19 — . 


§  264.     Attending  physician's  certificate 

1.  Name  of  injured  person .     Address  . 

2.  Date  of  accident  .     Hour  of  day M. 

3.  Was  first  treatment  rendered  by  you? .     If  not,  by  whom? . 

Address . 

4.  If  an  assistant,  consultant,  or  anaesthetist  was  necessary,  give  name  and 

address  . 

5.  Who  furnished  necessary  medical  supplies? . 

6.  Was  a  nurse  ordered  by  you? .     Name .     Address . 

7.  Is  — he  able  to  attend  to  any  part  of  his  present  or  any  other  occupa- 

tion?   . 

8.  Was  hospital  treatment  necessary? .    Name .    Address 


9.     Give  an  accurate  description  of  the  nature  and  extent  of  the  injury?- 


10.     Describe  the  treatment 


11.  Are  the  symptoms  from  which  he  is  suffering  due  entirely  to  this  in- 

jury?   . 

12.  Has    the    injury    resulted    in    a    permanent    disability?    .      If    so, 

what?  . 


13.    Has  previous  sickness  or  injury  affected  the  present  disability? 


264 


WORKMEN  S  COMPENSATION 


872 


14. 


15. 
16. 


Is  there  evidence  of  syphilis? 

coholism?  .     Any  infectious  disease? 


Tubercular  infection? 


Al- 


ease.'  ■ 
teria  ? 


Neuresthenia? 
Exaggeration 


— .     Occupational  dis- 
Hypochondriasis? ,    Hys- 


Is  there  evidence  of  malingering? . 

For  what  period,  from  the  date  of  accident  is  disability  likely  to  exist? 
weeks days. 


17.     State  in  patient's  own  words,  how  accident  occurred. 


18. 
19. 


Name  of  employer 
Remarks. 


Dated 


19—. 


Degree 


Attending  Physician. 

Address  . 

Tear .    College 


State  op  — 
County  of 


ss. 


I, 


-,  a  Notary  Public  (or  Justice  of  the  Peace)  for  the  State  of 


-,  do  hereby  certify  that  on  this 


residing  at ,  — 

A.  D.  19 — ,  personally  appeared  before  me.  the  above  named 


day  of 


a  physi- 


cian in  regular  standing  and  to  me  well  known,  and  made  oath  in  due  form 
of  law  that  the  foregoing  statements,  and  each  and  all  of  them  are  full  and 
true  of  his  (her)  own  knowledge,  and  are  made  without  reservation  or  con- 
cealment. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  aflSxed  my  notarial 
seal  the  day  and  year  last  above  written 


(Seal.) 


Notary  Public  (or  Justice  of  the  Peace). 


§  265.     Proof  of  death  and  certificate  authorizing  burial 


Proof  of  Death  from  Undertakfr 


State  of 


County  of 


-ss. 


says  that  he  is  a  duly  licensed  undertaker  of 


that  as  such  he  was  required  on  the 


(city  or  town)  at 
—  day  of , 


street  No. 

19 — ,  to  prepare  the  dead  body  of for  burial;   that  he  placed  said  body 

in  a  coffin  and  placed  said  cotfin  containing  the  said  body  in  a (jgi-ave, 


873  ILLUSTRATIVE  SELECTED  FORMS  §  265 

vault,  or  express  car)  in  cemetery  (cemetery,  crematory,  or  mauso- 
leum) ;  that  he  shipped  said  body  via to [relative,  friend,  etc.)  at 

(address) ;   that  he  was  directed  to  conduct  such  burial  by ,  who 

authorized  the  following : 

Moving  remains  to  morgue $ 

Washing,  shaving  and  dressing $ 

Embalming $ 

Telephone $ . 

Underclothes  and  hose $ 

Slippers    $ 

Burial  robe  ;}; ■ — 

Funeral  notices $ '- — 

Cemetery  lot $ 

Opening  and  filling  grave $ 

Lining  gr  ve $ 

Outside  box $ — ■ — — 

Grave  vault ?— — ■ — ■ 

Taking  box  or  vault  to  cemetery ? 

Casket,  coffin $ 

Hearse  $ 

Personal  service $ 

Use  of  gloves $ 

Use  of  double  rigs $ 

Use  of  single  rigs $ 

Funeral  service  by $ 

• Wagon   deliveries $ 

Total $ 

That  he  was  informed  said  bill  would  be  paid  by .     That  no  part  of 

said  bill  of  expense  so  authorized  for  said  burial  has  been  paid,  except : 

$ by  

$ by  

$ by  

(Siffned)  ■ . 

(Undertaker  sign  here.) 

Subscribed  and  sworn  to  before  me  this  day  of ,  A.  D.  19 — . 


County  (or  City)  Clerk  (or  Notary  Public). 


Certificate  of  Person  Authorizing  Burial 

I,  ,  hereby  certify  that  I  have  read  the  foregoing  affidavit  of 


undertaker;    that  I   authorized  the  items  of  expense  therein  amounting  to 

$ ,  as  the  of  deceased  workman. 

(Signed)  . 

(Person  authorizing  Iturial  sign  here.) 


§  266  workmen's  compensation 

§  266.     Subpoena 

SUBPCENA 

Industrial  Commission  of  State  of 
In  the  Matter  of 


874 


The  People  of  the  State  of . 

To  ,  Greeting: 

We  command  you,  that  all  and  singular,  business  and  excuses  being  laid 

aside,  you  appear  and  attend  before  the  Industrial  Commission  of  at 

on  the day  of ,  19 — ,  at  the  hour  of o'clock 

M.,  then  and  there  to  testify  in  the  above  entitled  matter,  now  pending  before 
said  Industrial  Commission  of  ,  in  which  is  being  investigated  


and  that  you  bring  with  you  and  then  and  there  produce  the  following  de- 
scribed books,  papers  and  records  : 


and  for  a  failure  to  attend  you  will  be  deemed  guilty  of  contempt  and  pun- 
ished according  to  law. 

Given  under  the  seal  of  the  Industrial  Commission  of this day 

of ,  19—. 


Witness : 
(Seal.) 


The  Industrial  Commission  of . 

By  ,  Secretary. 


§  267.     Petition  for  review 

Petition  for  Review  oe  Agreement  or  Decree 


Applicant(s) 


Respondent(s). 

,  the  above  named  applicant — ,  hereby  gives  notice  to  said  Industrial 

Accident  Commission  that  the  above  named  parties  on  day  of  , 

19 — ,  made  an  agreement  for  compensation  approved  by  the  Commission  (or 


'875  ILLUSTRATIVE  SELECTED  FORMS  §  268 

that  a  decree  was  made  by  said  Commission)  that  the {employer's  full 

name)  should  pay  to {employ&s  full  name)  the  sum  of dollars  per 

week  for  and  during  the  term  of weeks. 

That  since  said  decree  (or  agreement)  was  made  the  injury  for  which  the 
■employ^  was  compensated  has  ended  {or  increased,  or  diminished). 

Said  applicant  further  shows  that  the  accident  upon  which  claim  for  com- 
pensation was  based  in  this  matter  occurred  on  the day  of ,  19—, 

at  the  town  {or  city)  of ,  county  of ,  and  State  of ,  and  re- 
sulted in  {state  full  result  of  injury) . __^ 


The  postoffice  address  of  the  above  named  applicant  is and  the  post- 
office  address  of  the  respondent(s)  is  as  follows : 

The  above  named  applicant  prays  for  the  following  relief  in  that  said  com- 
pensation as  originally  given  maty  be  ended  {or  increased,  or  diminished). 

{Signed)  , 

{Applicant.) 
Dated  at ,  this day  of ,  19 — . 


§  268.     Notice  of  hearing 

Notice  of-  Hearing  of  Petition  eor  Review  oe  Agreement  or 

Decree 


Applicant(s) 


Respondent(s). 
To  the  above  named  parties  and  each  of  them : 

Notice  is  hereby  given  that  on  the day  of ,  19 — ,  notice  and  ap- 
plication for  petition  for  review  of  agreement  {or  decree)  for  compensation  in 
the  above  entitled  matter  was  filed  with  the  Industrial  Accident  Commission 

at  its  office  in  ,  and  that  a  true  copy  of  said  notice  and  application 

is  hereto  attached. 

You  will  further  take  notice  that  a  hearing  in  accordance  with  the  provi- 
sions of {section  and  act)  will  be  held  on  the day  of ,  19 — , 

at ,  commencing  at o'clock  in  the noon  of  said  day. 

You  are  further  notified  to  be  present  at  the  time  and  place  fixed  for  said 
hearing  and  be  prepared  to  proceed  with  the  same. 

Industrial  Accident  Commission, 

By  ,  Secretary. 

Dated  at this day  of ,  19 — . 


269 


WORKMEN  S   COMPENSATION 


876 


§  269.     Lump  sum  settlements 

Agreejment  for  Reiddeming  Liability  by  Payment  of  Lump  Sum 

Received  of (name  of  employer  or  insurer)  the  lump  sum  of 

dollars  and cents,  making  in  all,  with  weekly  payments  already  received 

by  me,  the  total  sum  of dollars  and cents,  a  weekly  payment  hav- 
ing been  continued  for  not  less  than  six  months.  Said  payments  are  received 
in  redemption  of  the  liability  for  all  weekly  payments  now  or  in  the  future 
due  me  under  the  Workmen's  Compensation  Act,  for  all  injuries  re- 
ceived by  me  on  or  about  the  day  of  ,  19 — ,  while  in  the  em- 
ploy of (name  of  employer  and  address),  subject  to  the  approval  of  the 

Industrial  Accident  Commission. 

Witness  my  hand  this day  of ,  19 — . 


Witness . 


(Name) 


(Name  of  employ^) 


(City  or  toxcn) 


(City  or  toicn) 


{Street  and  number) 


(Street  and  number) 


Application  for  Lump  Sum  Settlement 

In  the  Matter  of 


Claimant, 


Employer, 


and 


Insurer, 
Respondents.  _ 

Name  of  applicant . 

Address (street  and  number)  (city  or  town)  (state). 

Age  . 

Name  of  injured  or  deceased . 

Date  of  injury   or  death  (month) 

A.  M.  (or  P.  M.) 


(day),  19 —  (year).    Hour 


877 


ILLUSTRATIVE  SELECTED  FORMS 


§  269 


Place  of  injury  or  death 


Date  agreement  was  approved 

Date  award  entered {month) 


(month) 


{day),  19 —  (year), 
{year). 
Amount  of  compensation  or  death  benefits  received  to  date,  $ .    Amount 


{day),  19- 


due  under  award  or  agreement  $ 

under  award  or  agreement  

Date  of  first  payment (month) 


.    Time  compensation  is  to  be  paid 

(weeks)  {months)  (years). 


(day),  19 —  (year). 


In  Case  of  Death  Benefits,  Answer  the  Following: 

What  relation  do  you  bear  to  deceased?  ,     If  widow,  have  you  re- 
married?   .     What  children  receiving  benefits  have  reached  age  of  18 

years?  .     Have  any  of  dependents  died?  .     What  do  you  intend 

to  do  with  the  money  if  a  lump  sum  is  granted?     If  an  investment  is  con- 
templated, give  details. 


Wherefore,  your  petitioner  respectfully  prays  the  Commission  for  a  settle- 
ment in  one  lump  sum,  the  balance  due  under  said  award  or  agreement  said 
sum  to  be  computed  according  to  the  terms  of  the  Workmen's  Compensation 
Law. 


Dated  at 


this 


day  of 


A.  D.,  19—. 


PETITION  BY  Employe  or  Dependents  for  Commutation  oe 

Compensation 


Employe,  Dependent — ,  Personal  Representative,  Claimant. 

I  and/ 


Employer,  Defendant. 


Compensation  Agreement 
No. . 


Claim  Petition  No. 


19—. 


To  the  Workmen's  Compensation  Board: 

an  injured  employ^  (or  a  dependent  or  dependents  of  a  deceased 

employ^)  hereby  petitions  your  Honorable  Board  to  commute  the  future  in- 
stallments of  compensation  which  are  payable  to  by  (name  of 

employer,  or  State  Workmen's  Insurance  Fund)  under  Compensation  Agree- 
ment No.  (or  the  award  in  claim  petition  No.  )  as  provided  in 

section  of  the  Workmen's  Compensation  Act,  and  to  order  the  said 

(name  of  employer,  or  State  Insurance  Fund)  to  forthwith  pay  the 


§  269 


WORKMEN  S  COMPENSATION 


878: 


present  value  of  such  installments  in  one  lump  sum  payment,  and  alleges  the 
following  facts  as  the  ground  of  this  petition. 


Subscribed  and  sworn  to  before  me,  this 

My  commission  expires  on  the day  of 


(Signature  of  petitioncr.y 
day  of  — 


(Address.) 
-.  19—. 


-,  Notary  Public. 


-,  19—. 


§  270.     Petition  to  terminate  or  modify 

Pe:tition  for  Te;rmination  or  Modification  oif  Agre;eme;nt  or 
Award  on  Ground  of  Changed  Disability 


Employe,  Dependent — ,  Personal  Representative,  Claimant, 
f  and  1 


1-/ 


Employer,  Defendant. 


Compensation  Agreement 
No.  . 


Claim  Petition  No. 


19- 


,  an  employer  (or  an  employ^),  a  patrty  to  Compensation  Agreement  No.. 

(or  Award  Claim  Petition  No.  ),  hereby  petition  your  Honorable 

Board  to  terminate  (or  modify)  the  said  agreement  (or  award),  and  as  ground 

for  the  petition  allege  that  the  disability  of  ,  entitled  to  compensation 

under  the  said  agreement  (or  award)  has  terminated  (or  increased  or  de- 
creased) as  follows:  (State  manner  in  ichicli  disability  has  terminated  or  the 
manner  in  which  and  the  extent  to  which  it  has  increased  or  decreased.) 


And  in  support  thereof  I  state  the  following  facts : 


Sworn  to  and  subscribed  before  me,  this  day  of 

My  commission  expires  on  the day  of ,  19 — . 


(Name.) 

(Address.) 
-,  19—. 


-,  Notary  Public;. 


879  ILLUSTRATIVE  SELECTED  FORMS  §  271 

§  271.     Receipt  and  release 

Re;ce;ipt  for  Partial  Payments 

Receipt  for  Partial  Payment  Under  Workmen's  Compensation  Laiv 

,  19—. 

Received  of the  sum  of  dollars  ($ )  said  amount  being 

such  part  of  my  weekly  wages  for  a  period  of from  the day  of 

,  19 — ,  to  the day  of ,  19 — ,  as  I  am  entitled  to  under  the 

Workmen's  Compensation  Law  on  account  of  an  accident  sustained  by  nie 

on  or  about  the day  of ,  19 — ,  while  in  the  employ  of . 

{'Name)  . 


Witnesses ; 


{Address) 


State  of 


County  of 


ss: 


,  being  first  duly  sworn,  deposes  and  says  that  on  the day  of 

• ,  A.  D.  19 — -,  I  read  the  above  receipt  to  ,  who  signed  the  same, 

and  that  before  he  signed  I  correctly  interpreted  the  contents  of  said  receipt 

from  the  English  language  into  the  language  to  said  ,  and  the 

said  then  stated  that  he  fully  knew  and  understood  the  contents  of 

said  receipt. 


Subscribed  and  sworn  to  before  me  this day  of ,  A.  D.  19 — . 


(Seal.)  Notary  Public  in  and  for  County  and  State  Aforesaid. 


Receipt  Showing  Release  and  Final  Settlement 

Release  and  Final  Receipt  for  Compensation  Paid  Under  the  Work- 
men's Compensation  Lazv 

,  19—. 

Received  of the  sum  of dollars  ($ )  making  in  all,  with 

the  weekly  payments  already  received  by  me,  the  total  sum  of dollars 

($ )  such  payment  being  the  final  payment  of  compensation  under  the 

Workmen's  Compensation  Law  and  in  consideration  of  which  I  hereby  re- 
lease and  forever  discharge  the  said  ,  heirs,  successors  and  as- 
signs, from  any  and  all  actions,  causes  of  action,  claims  and  demands,  for, 
upon  or  by  reason  of  any  damage,  loss,  injury,  suffering  and  disfigurement 
which  heretofore  has  been  or  which  hereafter  may  be  sustained  by  me  in 


§  271  workmen's  compensation  880 

consequence  of  an  accident  suffered  by  me  on  or  about  the  day  of 

,  19 — ,  while  in  the  employ  of . 

Witness  my  hand  and  seal,  this day  of 19 — . 

Witnesses : 


.  {Seal.) 

State  of ,       "1 

County  of  .  j  ^^  * 

,  being  first  duly  sworn,  deposes  and  says  that  on  the day  of 

,  19 — ,  he  read  the  above  receipt  to  ,  who  siirned  the  same,  and 

that  before  signing,  he,  this  deponent,  correctly  interpreted  the  contents  of 

said  receipt  from  the  English  language  in  the language  to  said  , 

and  the  said  ■ —  then  stated  to  this  deponent  that  he  fully  knew  and  un- 
derstood the  contents  of  said  receipt. 


Subscribed  and  sworn  to  before  me  this day  of ,  A.  D.  19 — . 

{Seal.)  . 

Notary  Public  in  and  for  County  and  State  Aforesaid. 


§  272.     Insurance — Notices 

Notice  to  Employes 

As  required  by  {statute)  this  will  give  you  notice  that  I  (we)  have 

provided  for  payment  to  our  injured  employes  under  the  above  act  by  insur- 
ing with  the Insurance  Co.  of {insert  address  of  company  here). 

Date . 


(Name  of  employer.) 

Address  ,  • 

{City  or  town,  street  and  number.) 

NoTici:  That  an  Employer  has  Ceased  to  be  a  Subscriber 

This  is  to  give  you  notice  that  I  {ice)  have  ceased  to  be  a  subscriber  in  any 

insurance  company,  under  (statute)  and  that  the  policy  formerly  held 

by  me  expired {or  is  to  expire  ). 


(Name  of  employer.) 

Address  ■ ,  . 

(City  or  town,  street  and  number.) 


TABLE  OF  CASES  CITED 


Opinions  of  Attorney  Generals  of  various  states  will  be  found  in  this  table  un- 
der the  name  of  the  state. 

Opinions  of  Comptroller  of  Treasury  will  be  found  under  "Federal  Act"  in  this 
table. 

Opinions  of  Special  Counsel  to  Iowa  Industrial  Commission  will  be  found  in 
this  table  under  "Iowa." 

Report  of  Nevada  Industrial  Commission  wiU  be  found  in  this  table  under 
"Nevada." 

First  Annual  Reports  Oregon  Industrial  Accident  Commission  wiU  be  found  in 
this  table  under  "Oregon." 

Rulings  of  Washington  Industrial  Accident  Insurance  Commission  will  be  found 
in  this  table  under  "Washington." 


A 

Page 

Aberdeen  Steam  Trawling  &  Fishing  Co.  v.  Gill,  1  B.  W.  C.  C.  274 172 

Abram  Coal  Co.  v.  Southern,  5  W.  C.  C.  125,  H.  L 575 

Ackerson  v.  National  Zinc  Co.,  96  Kan.  781,  153  Pac.  530 

653,  728,  750,  761,  763 
Acres  v.   Frederick  &  Nelson,   79  Wash.  402,  140  Pac.  370,  5  N.   C.  C. 

A.  557  737 

Acrey  v.  Holtville,  2  Cal.  I.  A.  C.  Dec.  587 198,  439,  618,  677,  767 

Adams  v.  Acme  White  Lead  &  Color  Works,  182  Mich.  157,  148  N.  W.  485, 

L.  R.  A.  1916A,  282,  283,  6  N.  C.  C.  A.  482 6,  110,  275,  276, 

278,  298,  537,  539,  540 

V.  Acme  White  Lead  &  Color  Works,  Op.  Mich.  Indus.  Ace.  Bd.  31 73 

V.  Shaddox,  2  K.  B.  859 28 

V.  Thompson,  5  B.  W.  C.  C.  19,  C.  A 281 

Addle  &  Sons'  Collieries  v.  Trainer,  7  F.  115,  Ct.  of  Sess 245 

Adler,  In  re,  Op.  Sol.  Dept.  of  L.  63,  67,  15  Comp.  Dec.  845 188,  811 

v.  Thomas  Hefsky  Theatre  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  11, 

p.  13  335,  805 

Admiral  Fishing  Co.  v.  Robinson,  8  B.  W,  C.  C.  247,  C.  A 171 

Agard,  In  re.  Op.  Sol.  Dept.  of  L.  550 250 

Agler  V.  Michigan  Agriculture  College,  181  Mich.  559,  148  N.  W.  341,  5 

N.  C.  C.  A.  897 118,  182 

V.  Michigan   Agriculture  College,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No. 

3,  p.  25 199 

HoN.CoMP.— 56  (881) 


Aiken 


CASES   CITED  882 


Page 
Aiken  v.  Anderson,  2  Cal.  I.  A.  C.  Dec.  323 20« 

Aillo  V.  Milwaukee  Refrigerator  Transit  &  Car  Co.,  Rep.  Wis.  Indus.  Com. 

1914-15,  p.  18 4^1 

Aitken  v.  Finlayson,  Bousfield  &  Co.,  7  B.  W.  C.  C.  918,  Ct.  of  Sess. . .  .299,  408 

Akins  V.  Pacific  Light  &  Power  Corp.,  2  Cal.  I.  A.  C.  Dec.  985 506 

Albanese  v.  Stewart,  78  msc.  Rep.  581,  138  N.  Y.  Supp.  942 33,  90,  91,  92 

Alcee,  In  re,  Op.  Sol.  Dept.  of  L.  61 187 

Alderidge  v.  Merry,  6  B.  W.  C.  C.  450,  C.  A 381 

Allaire  v.  Copping,  1  Conn.  Comp.  Dec.  288 727 

Allard  v.  Browne,  2  Cal.  I.  A.  C.  Dec.  489 691 

V.  Ne\v  York,  N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec.  385 756,  777 

Allen  V.  Millville,  87  N.  J.  Law,  356,  95  Atl.  130,  1011,  9  N.  C.  C.  A.  749.  .73,  750 

V.  Southwestern  Surety  Ins.  Co.,  1  Cal.  I.  A.  C.  Dec.  67 479,  512 

V.  State  (Sup.)  160  N.  Y.  Supp.  85 9,  333 

Alloa  Coal  Co.  v.  Drylie,  6  B.  W.  C.  C.  398,  Ct.  of  Sess.,  1  Scot.  L.  T.  167, 

4  N.  C.  C.  A.  899 300,  302,  544 

Allyn  V.  Fresno  Brewing  Co.,  2  Cal.  I.  A.  C.  Dec.  784 440 

Alton  V.  Hopkins  &  Allen  Arras  Co.,  1  Conn.  Comp.  Dec.  378 486 

Alvarez  v.  Eisenmann,  1  Conn.  Comp.  Dec.  357 240 

American  Coal  Co.  v.  Allegany  County  Com'rs,  128  Md.  564,  98  Atl.  143.. 

59,  64,  66,  80 
American  Ice  Co.  v.  Fitzhugh,  128  Md.  382,  97  Atl.  999.  .331,  568,  569,  571,  818 

American  Legion  of  Honor  v.  Perry,  140  Mass.  580,  5  N.  B.  634 256 

American  Mut.  Liability  Ins.  Co.,  In  re,  215  Mass.  480,  102  N.  E.  693,  Ann. 

Cas.  1914D,  372,  4  N.  C.  C.  A.  60 33,  191,  745,  820,  836 

American  Mut.  Liability  Ins.  Co.,  In  re,  222  Mass.  461,  111  N.  E.  166 584 

American  Radiator  Co.  v.  Rogge,  87  N.  J.  Law,  314,  93  Atl.  1083,  affirm- 
ing 86  N.  J.  Law,  436,  92  Atl.  85,  94  Atl.  85,  7  N.  C.  C.  A.  144 39,  41,  115 

American  R.  Co.  v.  Didricksen,  227  U.  S.  145,  33  Sup.  Ct.  224,  57  L.  Ed. 

456    251 

Ames  V.  New  York  Cent.  R.  R.  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  12, 

p.  17   367 

Amys  V.  Barton,  5  B.  W.  C.  C.  117,  C.  A 322,  420,  776 

Anderson,  In  re,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Comp.  p.  90 363,  379 

V.  American  Straw  Board  Co.,  1  Conn.  Comp.  Dec.  11 234,  686 

v.  Ashmore  Mut.  Tel.  Co.,  Bulletin  No.  1,  111.,  p.  132 331 

V.  Baird  &  Co.,  40  S.  L.  R.  263 523 

V.  Baird  &  Co.,  5  F.  373,  Ct.  of  Sess 528 

V.  Balfour,  3  B.  W.  C.  C.  588,  C.  A 284,  437 

V.  Balfour,  2  I.  R.  497 433 

V.  Fielding,  92  Minn.  42,  90  N.  W.  357,  104  Am.  St.  Rep.  665 251 

V.  Fife  Coal  Co.,  3  B.  W.  C.  C.  539,  Ct.  of  Sess 372 

V.  Mickelson,  1  Cal.  I.  A.  C.  Dec.  189 133 

V.  National  Fireproofing  Co.,  Bulletin  No.  1,  111.,  p.  41 801 


883  CASES  CITED  Atchison 

Page 

Anderson  v.  North  Alaska  Salmon  Co.,  2  Cal.  I.  A.  C.  Dec.  241 39,  99 

V.  Perew,  2  Cal.  I.  A.  C.  Dec.  (Bulletins  1915)  736 177,  349 

Anderson  &  Co.  v.  Adamson,  6  B.  W.  C.  C.  S74,  Ct.  of  Sess 432 

Andreiui  v.  Cudahy  Packing  Co.,  1  Cal.  I.  A.  O.  Dec.  157,  6  N.  C.  C  A.  390. .  501 
Andrejwski  v.  Wolverine  Coal  Co.,  182  Mich.  29S,  148  N.  W.  684,  6  N.  C. 

C.  A.  807 25,  587,  594 

Andreucetti  v.  California  Brick  Co.,  2  Cal.  I.  A.  C.  Dec.  282,  284 550 

Andrew  v.  Alaska  Packers'  Ass'n,  2  Cal.  T.  A.  C.  Dec.  770 271 

Andrews  v.  Andrews  &  Hears,  1  B.  W.  C.  C.  264,  C.  A 129 

V.  Failsworth  Industrial  Soc,  2  K.  B.  32,  90  L.  T.  Gil 426,  429,  430 

Angelucci  v.  H.  S.  Kerbaugh,  Inc.,  The  Bulletin,  N.  Y.  Vol.  1,  No.  12, 

p.  16 243,  270 

Andrzejewski  v.  Northwestern  Fuel  Co.,  158  Wis.  170,  148  N.  W.  37 828 

Anslow  V.  Cannock  Chase  Colliery  Co.,  2  B.  W.  C.  C.  361,  C.  A 581 

Aquilano  v.  Lambo,  1  Conn.  Comp.  Dec.  145 499,  527 

Arata,  In  re,  Op.  Sol.  Dept.  of  L.  264 299 

Archibald  v.  Ott  (W.  Va.)  87  S.  E.  791 322,  323,  324,  381,  382, 

383,  415,  437,  477,  548 
Arizona  &  N.  M.  R.  Co.  v.  Clark,  207  Fed.  817,  125  C.  C.  A.  305,  affirmed 

235  U.  S.  669,  35  Sup.  Ct.  210,  59  L.  Ed.  415,  L.  B.  A.  1915C,  834 31 

Armenis  v.  Kerr,  1  Conn.  Comp.  Dec.  338 716 

Armiger  v.  Towusend-Davis  Baking  Co.,  1  Cal.  I.  A.  C.  Dec.  55 483,  650 

Armistead,  In  re,  Op.  Sol.  Dept.  of  L.  305 402 

Armitage  v.  Lancashire  &  Y,  R.  Co.,  2  K.  B.  178 324,  426,  433,  441 

V.  Lancashire  &  Y.  R.  Co.,  4  W.  C.  C.  5,  C.  A 435,  436 

Armour  &  Co.  v.  Industrial  Board  of  Illinois,  273  111.  590,  113  N.  E.  138. . 

464,  774,  831,  840 
Armstrong,  v.   Industrial   Commission   of   Wisconsin,   161   Wis.   530,   154 

N,  W.  844 244 

Arnold,  In  re.  Op.  Sol.  Dept.  of  L.  156,  158 344 

V.  Benjamin,  1  Cal.  I.  A.  C.  Dec.  412 565 

V.  Brooklyn,  1  Conn.  Comp.  Dec.  188 480 

V.  Holeproof  Hosiery  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  32.  .320,  436 

Arnott  V.  Fife  Coal  Co.,  6  B.  W.  C.  C.  281,  Ct.  of  Sess 479 

Arrol  &  Co.  v.  Kelly,  7  F.  906,  42  S.  C.  L.  695 228,  233 

Artenstein   v.    Employers'    Liability    Assur.    Corp.,   2   Mass.    Wk.    Coiap. 

Cases  699 177 

Ash  V.  Barker,  2  Cal.  I.  A.  C.  Dec.  139 510 

V.  Barker,  2  Cal.  I.  A.  C.  Dec.  577 480,  488,  500,  701,  710 

Ashley  v.  Lilleshall  Co.,  5  B.  W.  C.  C.  85,  C.  A 308 

Ashtou  V.  Boston  &  M.  R.  Co.,  222  Mass.  65,   100  N.   E.  820,  L.  R.   A. 

1916B,    1281    114 

Atchison,  T.  &  S.  F.  R.  Co.  v.  Matthews,  174  U.  S.  106,  19  Sup.  Ct.  609,  43 
L.  Ed.  909 SO 


Atkina  CASES  CITED 


884 


Page 

Atkins  V.  Scranton,  1  Conn.  Comp.  Dec.  34 363,  445 

Atkinson,  In  re,  Op.  Sol.  Dept.  of  L.  235 490 

Atlas  Shoe  Co.  v.  Bloom,  209  Mass.  563,  95  N.  E.  952 159 

Augustine  v.  Cotter,  2  Cal.  I.  A.  C.  Dec.  49 206 

Aultman  &  Taylor  Co.  v.  Syme,  163  N.  Y.  54,  57,  57  N.  E.  168,  79  Am. 

St.  Rep.  565 ^^9 

Avery,  In  re.  Op.  Sol.  Dept.  of  L,  517 652 

V.  Pacific  Gas  &  Electric  Co.,  2  Cal.  I.  A.  C.  Dec.  311. . .  .227,  247,  261,  269 
Aylesworth  v.  Plioenix  Cheese  Co.,  170  App.  Div.  34,  155  N.  Y.  Supp.  916. .  330 
Aylward  v.  Oceanic  S.  S.  Co.,  2  Cal.  I.  A.  C.  Dec  95 534,  535,  681 

B 

Bacik  V.  Solvay  Process  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  48 570,  800 

Back  V.  Dick,  Kerr  &  Co.,  8  W.  C.  C.  40,  H.  L 129 

Backman  v.  Dwight  Devine  &  Sons,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10, 

p.  17   512 

Badolato,  In  re.  Op.  Sol.  Dept.  of  L.  630 769 

Baggonski  v.  Clayton  Bros.,  1  Conn.  Comp.  Dec.  299 5S0 

Bagley  v.  James,  2  Cal.  I.  A.  C.  Dec.  842 198 

Bailey,  In  re,  Op.  Sol.  Dept.  of  L.  297 353,  649 

V.  Kenworthy,  1  B.  W.  C.  C.  351.  371.  C.  A 594 

V.  United  States  Fidelity  &  Guaranty  Co.,  99  Neb.  109,  155  N.  W. 

237 142,  654,  659,  660,  662 

V.  Wheeler  Co.,  1  Cal.  I.  A.  C.  Dec.  142 690 

Baine  v.  Libby,  McNeil  &  Libby;  2  Cal.  I.  A.  C.  Dec.  433 310 

Baii-d,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  28 237,  594 

Baird  &  Co.  v.  Burley,  1  B.  W.  C.  C.  7,  Ct.  of  Sess 435,  437 

V.  Podolska,  8  F.  438,  Ct.  of  Sess 235 

V.  Eobson,  7  B.  W.  C.  C.  925 407 

Baker,  In  re,  Op.  Sol.  Dept.  of  L.  100 188 

V.  Armstrong,  2  Cal.  I.  A.  C.  Dec.  1057 210 

Bakiewicz  v.  National  Brake  &  Electric  Co.,  Rep.  Wis.  Indus.  Com.  1914- 

15,  p.  11 511,  703,  755 

Ball  V.  Hunt,  81  L.  J.  K.  B.  782,  787 63a 

V.  William  Hunt  &  Sons,  5  B.  W.  C.  0.  459,  H.  L. ;  4  B.  W.  C.  C.  225, 

C.  A 479,  599,  601 

Banister  Co.  v.  Kriger,  84  N.  J.  Law,  30,  85  Atl.  1027,  rehearing  denied 

89  Atl.  923 629,  634,  646,  650,  662,  805,  837,  839 

Bank  v.  Com.,  167  U.  S.  461,  17  Sup.  Ct.  829,  42  L.  Ed.  236 80 

Banks  v.  Adams  Exp.  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  7,  p.  9 510 

Barbeary  v.  Chugg,  8  B.  W.  C.  C.  37,  C.  A 300,  451 

Barbour  Flax  Spinning  Co.  v.  Hagarty,  85  N.  J.  Law,  407,  89  Atl.  919, 
4  N.  C.  C.  A.  586 629 


885  CASES   CITED  Bayne 

Page 

Barclay,  Curie  &  Co.  v.  McKinnon,  3  F.  436,  Ct.  of  Sess 129 

Bargewell  v.  Danies,  98  L.  T.  R.  257,  C.  A 191 

Bargey  v.  Massaro  Macaroni  Co.,  218  N.  Y.  410,  113  N.  E.  407,  affirming 

170  Ar»p.  Div.  WPi.  irio  N.  Y.  Supp.  1076 332 

Barksdale  v.  Fidelity  &  Deposit  Co.  of  Maryland,  2  Mass.  Wk.  Rep.  of 

L  uwip.  Cases,  214 549 

Barnabas  v.  Bersham  Colliery  Co.,  3  B.  W.  C.  C.  21G,  C,  C,  102  L,  T.  R. 

621    308,  464 

V.  Bersham  Colliery  Co.,  4  B.  W.  C.  C.  119,  H,  L.,  103  L.  T.  R.  513 

308,  464,  779 

Barnard  v.  H.  Garber  &  Co.,  1  Conn.  Comp.  Dec.  572 369,  453 

Barnes  v.  Evans  &  Co.,  7  B.  W.  C.  C.  24,  C.  A 212 

V.  Nunnery  Colliery  Co.,  4  B.  W.  C.  C.  43,  C.  A 389,  444,  457 

V.  Nunnery  Colliery  Co.,  5  B.  W.  C.  C.  195,  199. 389,  444,  457,  563 

V.  Nunnery  Colliery  Co.  (1912)  App.  C.  44 321,  392 

Barnett  v.  Port  of  London  Authority,  6  B.  W.  C.  C.  Ill 584 

Barozzi  v.  Bertin  &  Lepori  Co.,  1  Cal.  I.  A.  C.  Dec.  484 725 

Barrett  v.  Grays  Harbor  Commercial  Co.  (D.  C.)  209  Fed.  95,  4  N.  C.  C. 

A.  756 150,  736 

V.  Shartenberg  &  Robinson  Co.,  1  Conn.  Comp.  Dec.  305 380 

Barron  v.  Venice,  2  Cal.  I.  A.  C.  Dec.  25 IM 

Barron's  Case,  121  U.  S.  186,  7  Sup.  Ct.  931,  30  L.  Ed.  915 71 

Barry  v.  Bay  State  St.  R.  Co.,  222  Mass.  366,  110  N.  E.  1031.  .155,  159,  160,  724 

Bartley  v.  Boston  &  N.  St.  Ry.,  198  Mass.  163,  83  N.  E.  1093 257 

Barton  v.  Mulvane,  59  Kan.  313,  52  Pac.  883 763 

V.  New  York,  N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec.  227. .  .531,  713,  714 

Bartz  V.  Friedlander,  The  Bulletin,  N.  Y.,  vol.  1,  No.  11,  p.  11 333,  423 

Bassett  v.  Chicago,  R.  I.  &  P.  R.  Co.,  Bulletin  No.  1,  111.,  p.  120 46 

V.  Thomas  Graf  Edler  Co.,  1  Cal.  I.  A.  C.  Dec.  60 583,  700 

Batch  V.  Borough  of  Groton,  1  Conn.  Comp.  Dec.  177 624 

Batchelder  v.  Kreis,  1  Cal.  I.  A.  C.  Dec.  63 134,  794 

Bateman  v.  Albion  Combing  Co.,  7  B.  W.  C.  C.  47 467 

V.  Carterville  &  Big  Muddy  Coal  Co.,  188  111.  App.  357 106 

Bateman  Mfg.  Co.  v.  Smith,  85  N.  J.  Law,  409,  89  Atl.  979,  4  N.  C.  C. 

A.   588 585,  626 

Bates  V.  Mirfield  Coal  Co.,  6  B.  W.  O.  C.  165,  C.  A 473 

Bathgate  v.  Caledonian  R.  Co.,  4  F.  313,  Ct.  of  Sess 1,30 

Batista  v.  West  Jersey  &  S.  R.  Co.  (N.  J.)  88  Atl.  954,  4  N.  O.  C.  A.  781. . .  246 

Battenfield  v.  Atchison,  T.  &  S.  F.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  688 53 

Baur  V.  Court  of  Common  Pleas,  88  N.  J.  Law,  128,  95  Atl.  627 

31,  576,  745,  766 

Baumgartner  v.  New  Method  Laundry  Co.,  2  Cal.  I.  A.  C.  Dec.  639 767 

Bayer  v.  Bayer  (Mich.)  158  N.  W.  109 322 

Bayne  v.  Riverside  Storage  &  Cartage  Co.,  181  Mich.  378,  148  N.  W.  412, 
5  N.  C.  C.  A.  837 822,  825,  839 


Bayon  CASES  CITED  886 

Page 

Bayon  v.  Beckley,  89  Conn.  154,  161,  93  Atl.  139,  8  N.  C.  C.  A.  588 

25,  110,  111,  327,  732 

Beals  V.  United  Railroads  of  San  Francisco,  3  Cal.  I.  A.  C.  Dec.  30 588 

Beam  v.  Thornton  Claney  Lumber  Co.,  Bulletin  No.  1,  111.,  p.  113 801 

Beamer  v.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  737 52 

Beatty  v.  Los  Angeles  County,  2  Cal.  I.  A.  C.  Dec.  1058 379,  452 

Beauchamp  v.  Chanslor-Canfield  Midway  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  510. .  307 

Beaudry  v.  Watkins  (Mich.)  158  N.  W.  16 355,  445,  550 

Beaumont  v.  Underground  Electric  R.  Co.  of  London,  5  B.  W.  C.  C.  247, 

C.  A 309 

Becker  v.  Blake,  1  Conn.  Comp.  Dec.  516 804 

Beckster  v.  Pattison,  1  Conn.  Comp.  Dec.  61 311 

Beddard  v.  Stanton  Ironworks  Co.,  6  B.  W.  C.  C.  627,  C.  A 599 

Bedini  v.  Northwestern  Pac.  R.  Co.,  1  Cal.  I.  A.  C.  Dec.  312 303,  654,  657 

Behringer  v.  Inspiration  Consol.  Copper  Co.,  17  Ariz.  232,  149  Pac.  1065. . . . 

24,  91,  102 

Beinotovitz  v.  National  Iron  Works,  1  Conn.  Comp.  Dec.  623 714 

Belcher  v.  Campo,  1  Conn.  Comp.  Dec.  612 233 

Belfast,  The,  7  Wall.  624,  19  L.  Ed.  266 44 

Bell  V.  Hayes-Ionia  Co.  (Mich.)  158  N.  W.  179 295,  797,  822,  826 

V.  Toluca  Coal  Co.,  272  111.  576,  112  N.  E.  311 109 

Bell's  Gap  Railroad  v.  Pennsylvania,  134  U.  S.  232,  237,  10  Sup.  Ct.  533, 

33  L.  Ed.  892 80 

Bellamy  v.  Humphries  &  Sons,  6  B.  W.  C.  C.  53,  C.  A 468 

Bender  v.  Zent,  The,  2  B.  W.  C.  C.  22,  C.  A 468 

V.  Zent,  The,  100  L.  T.  639 469 

V.  Zent,  The,  2  K.  B.  41 471 

Bennett  v.  San  Buenaventura  Wharf  Co.,  1  Cal.  I.  A.  C.  Dec.  200 239 

V.  Wordie  &  Co.,  3  F.  908 762 

Benoit  v.  Bushnell,  1  Conn.  Comp.  Dec.  172 211,  827 

Benson  v.  Hutchinson  Co.,  2  Cal.  I.  A.  C.  Dec.  901 350,  412 

V.  Lancashire  &  Yorkshire  R.  Co.,  6  W.  C.  C.  20,  C.  A 326,  359,  385 

Bentley  v.  Massachusetts  Employees  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cases, 

42,  affirmed  217  Mass.  79,  104  N.  E.  432 235 

Bentley's  Case  (Bentley,  In  re)  217  Mass.  79,  104  N.  E.  432,  4  N.  C.  C.  A. 

559    25,  257,  263,  821,   824,  830 

Benton  v.  Wilson,  Bulletin  No.  1,  111.,  p.  54 117,  330 

Berg,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  102 685 

V.  Great  Lakes  Dredge  &  Dock  Co.,  158  N.  Y.  Supp.  718 388 

Bergeron,  Petition  of,  220  Mass.  472,  475,  107  N.  E.  1007 290 

Bernard,  In  re.  Op.  Sol.  Dept.  of  L.  323 371 

V.  Michigan  United  Traction  Co.  (Mich.)  154  N.  W.  586 101 

Bernstein  v.  Bothman,  Bulletin  No.  1,  111.,  p.  163 801,  802 

Berry  v.  Pacific  Coast  Steel  Co.,  2  Cal.  I.  A.  C.  Dec.  178 614 


887  CASES  CITED  Blauvelt 

Page 

BerthoM  v.  McCormick  S.  S.  Co.,  2  Cal.  I.  A.  C.  Dec.  993 803 

Berton  v.  Tietken  &  Land  Dry  Dock  Co.  (D.  C.)  219  Fed.  763 45 

Bertram  v.  Crocker  Co.,  2  Cal.  I.  A.  C.  Dec.  351 498 

Besnys  v.  Herman  Zohrlaut  Leather  Co.,  157  Wis.  203,  147  N.  W.  37,  5 

N.  C.  C.  A.  282 20,  111,  113 

Bianchini  v.  Selby  Smelting  &  Lead  Co.,  2  Cal.  I.  A.  C.  Dec.  195 679,  680 

Bickelnitzky  v.  Acme  Brewing  Co.,  3  Cal.  I.  A.  C.  Dec.  5 611 

Biddinger  v.  Champion  Iron  Co.,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  70 

110,  147,  208,  825,  353,  434,  572 

Biero  v.  New  Haven  Hotel  Co.,  1  Conn.  Comp.  Dec.  52 240,  792 

Biggart  v.  Minnesota,  The,  5  B.  W.  C.  C.  69,  C.  A 450 

Billingsley  v.  United  Tuna  Packing  Co.,  2  Cal.  I.  A.  C.  Dec.  133 807 

Billman  v.  Two  Rivers  Coal  Co.,  Bulletin  No.  1,  111.,  p.  69 6-35 

Binkley  v.  Western  Pipe  &  Steel  Co.,  1  Cal.  I.  A.  C.  Dec.  33 590,  641 

Birmingham  v.  Lehigh  &  Wilkesbarre  Coal  Co.  (N.  J.)  95  Atl.  242 

31,  620,  766,  781,  815 

Birmingham  Cabinet  Mfg.  Co.  v.  Dudley,  3  B.  W.  C.  C.  169,  C.  A 602 

Birk  v.  Matson  Nav.  Co.,  2  Cal.  I.  A.  C.  Dec.  177 305 

Birnie  v.  Contractors'  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases, 

619 318 

Bischoff  V.  American  Car  &  Foundry  Co.  (Mich.)  157  N.  W.  34 403,  546,  823 

Bishop  V.  Iroquois  Iron  Co.,  Bulletin  No.  1,  111.,  p.  108 239 

V.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  749 53 

V.  United  States    Crushed  Stone  Co.,  Bulletin  No.  1,  111.,  p.  201 239 

Bisotti  V.  Behlow  Estate  Co.,  2  Cal.  I.  A.  C.  Dec.  986 409 

Bist  V.  London  &  Southwestern  R.  Co.,  9  W.  C.  C.  19,  24,  H.  L.,  96  L.  T. 

750 555,  556,  559,  569 

Black  V.  New  Zealand  Shipping  Co.,  6  B.  W.  C.  C.  720,  C.  A 542 

Blackall  v.  Winchester  Repeating  Arms  Co.,  1  Conn.  Comp.  Dec.  183 

227,  275,  515 

Blackford  v.  Green,  87  N.  J.  Law,  359,  94  Atl.  401 630,  668,  684 

Blackhurst,  In  re.  Op.  Sol.  Dept.  of  L.  090 648 

Blaine,  In  re.  Op.  Sol.  Dept.  of  L.  p.  117 341 

V.  McKinsey,  1  Cal.  I.  A.  C.  Dec.  641 192,  207,  550 

Blake  V.  Head,  5  B.  W.  C.  C.  303,  O.  A 284,  439 

V.  Head,  106  L.  T.  R.  822 S24,  426 

V.  Herskovitz,  Bulletin  No.  1,  111.,  p.  161 519,  801 

Blanchard  v.  Portland  &  R.  F.  Ry.,  87  Me.  241,  32  Atl.  890 186,  187 

Blanding  v.  Sayles,  21  R.  I.  211,  42  Atl.  872,  23  R.  I.  226,  49  Atl.  992 822 

Blanton  v.  Wheeler  &  Howes  Co.,  1  Conn.  Comp.  Dec.  415 227 

Blanz  V.  Erie  R.  R.  Co.,  84  N.  J.  Law,  35,  85  Atl.  1030 231 

Blass  V.  Studebaker  Corp.  of  America,  1  Cal.  I.  A.  C.  Dec.  162 799 

Blatt  V.  Schoneberger  &  Noble,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  10 511 

Blauvelt  v.  Chicago  &  A.  R.  Co.,  Bulletin  No.  1,  111.,  p.  181 16,  46,  47 


Block  CASES    CITED  888 

Page 

Block  V.  Mutual  Biscuit  Co.,  2  Cal.  I.  A.  C.  Dec.  274 303,  411,  515 

Blood  V.  Industrial  Ace.  Commission  of  California   (Cal.  App.)  157  Pac. 

1140 205 

Bloom,  In  re,  222  Mass.  4.34,  111  N.  E.  45 748,  749,  761,  824 

V.  Jaffe,  94  Misc.  Eep.  222,  157  N.  Y.  Supp.  92G 719 

Blount,  In  re,  Op.  Sol.  Dept.  of  L.  137 346 

Blovell  V.  Sawyer,  20  T.  L.  R.  105 396 

Blovelt  V.  Sawyer,  6  W.  C.  C.  16,  C.  A 380 

Blynn  t.  Pontiac,  185  Mich.  35,  151  N.  W.  681,  8  N.  C.  C.  A.  793 222,  327 

Boardman  v.  Whitworth,  3  W.  C.  C.  33 287 

Board  of  Water  Supply,  In  re,  170  App.  Div.  107,  155  N.  Y.  Supp.  753 823 

Bobbey  v.  Crosbie,  8  B.  W.  C.  C.  236,  C.  A 124, 128 

Bockwicli  V.  Housatonlc  Power  Co.,  1  Conn,  Comp.  Dec.  266 476,491 

Bode  V.  Shreve  &  Co.,  1  Cal.  I.  A.  C.  Dec.  6 350,  353 

Boehme  v.  Owl  Drug  Co.,  2  Cal.  I.  A.  C.  Dec.  529 467 

Boggeln  V.  Coronada  Hotel,  1  Cal.  I.  A.  C.  Dec.  276 499 

Bohma  t.  Western  Union  Tel.  Co.,  2  Cal.  I.  A.  C-  Dec.  246 552 

Bolger  V.  North  Pacific  S.  S.  Co.,  2  Cal.  I.  A.  C.  Dec.  268 561 

Bolles  V.  New  York  Motion  Picture  Corp.,  2  Cal.  I.  A-  C.  Dec.  501 372 

Bolton  V.  Bridgeport  Brass  Co.,  1  Conn.  Comp.  Dec.  515 521 

Bonsall  v.  Midland  Colliery  Owners'  Mut.  Indemnity  Co.,  7  B.  W.  0.  C. 

613,    C.    A 607 

Bonsanar,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  87 260 

Boody  V.  K.  &  C.  Mfg.  Co.,  77  N.  H.  208,  90  Atl.  859,  L.  R.  A.  1916A,  10, 

Ann.  Cas.  1914D,  1280,  5  N.  C.  C.  A.  840 •. .  .109,  277,  325,  328,  411, 453 

Boon  V.  Quance,  3  B.  W.  C.  C.  106,  C.  A 180 

Booth  V.  Burnett,  2  Cal.  I.  A.  C.  Dec.  125 373 

V.  Leeds  &  Liverpool  Canal  Co.,  7  B.  W.  C.  C.  434,  C-  A 474 

Borgnis  v.  Falk  Co.  (Borgnis  Case)  147  W^is.  327,  133  N.  W.  209,  37  L.  R.  A. 

(N.  S.)  489,  3  N.  C.  C.  A.  649 71,  72,  77,  82,  85,  86,  98,  772,  829 

Borland  v.  Watson,  Gow  &  Co.,  5  B.  W.  C.  C.  514,  Ct.  of  Sess 318,  517 

Boschetti  v.  Lecas,  3  Cal.  I.  A.  C.  Dec.  39 192 

Boston  &  M.  R.  R.  Co.  v.  Trafton,  151  Mass.  229,  23  N.  E.  829 33 

Boswell  V.  Gilljert,  2  B.  W.  C.  C.  251,  C.  C 120 

Boucher  v.  Olson  &  Mahony  S.  S.  Co.,  1  Cal.  I.  A.  C.  Dec.  248 375,  453 

Bowdish  V.  Northwestern  Pac.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  777 407 

Boweu,  In  re,  Op.  Sol.  Dept.  of  L.  340 647 

Bowhill  Coal  Co.  v.  Neish,  2  B.  W.  C.  C.  253,  Ct.  of  Sess 241 

Bowne  v.  S.  W.  Bowne  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  12,  p.  17 173,334 

Boyd  V.  Doharty,  2  B.  W.  C.  C.  257,  Ct-  of  Sess 214 

V.  Pratt,  72  Wash.  306,  130  Pac.  371 644,  843 

Boyington  v.  Stoddard,  1  Conn.  Comp.  Dec.  103 211,  566 

Bracldns  v.  Trinity  Asbestos  Mining  Co.,  3  Cal.  I.  A.  C-  Dec.  22 390 

Bradbury  v.  Belworth  Coal  &  Iron  Co.,  2  W.  C.  C.  138,  C.  A 677 


889  CASES  CITED  Brooklyn 

Page 

Bradford  v.  Union  Hollywood  Water  Co.,  2  Cal.  I.  A.  C  Dec.  792 272 

Bradley  v.  Wallaces,  Ltd.,  6  B.  W.  C.  C.  706,  C.  A 154 

V.  Waterbury  Clock  Co.,  1  Conn.  Comp.  Dec  179 700 

Brady  v.  Grove,  1  Conn.  Comp.  Dec.  2-10 123 

Brain  v.  Elsf elder,  2  Cal.  I.  A.  C-  Dec.  30 130,  133,  205,  206,  680 

Braithwaite  v.  Rowley,  1  Conn.  Comp.  Dec.  355 804 

Braithwaite  &  Kirk  v.  Cox,  5  B.  W.  C.  C.  77,  C.  A 526 

Bramley  v.  Evans  &  Sons,  8  B.  W-  C.  C.  34,  C.  A 753 

Brandt  v.  Globe  Indemnity  Co.,  1  Cal.  I.  A.  C.  Dec.  309 623,  682 

Branch,  In  re.  Op.  Sol.  Dept.  of  L.  576 249,  256 

Branconnier,  In  re,  223  Mass.  273,  111  N.  E.  792 620 

Bravis  v.  Chicago,  M.  &  St.  P.  R.  Co.,  217  Fed.  234,  133  C.  C.  A.  228 55 

Breakwater  Co.  v.  U.  S.,  183  Fed.  112,  114,  105  G.  C.  A.  404 183 

Breakwell  v.  Glee  Hill  Granite  Co.,  5  B.  W.  C.  C.  133,  C.  A 752 

Brennan  v.  Travelers  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  503 600 

Brenner  v.  Brenner,  127  Md.  189,  96  Atl.  287 12,  28,  817 

Brewer  v.  Belcher,  1  Conn.  Comp.  Dec.  Ill 107,  742,  754 

V.  Smith,  6  B.  W.  C.  C.  651,  C.  A 545 

Brice  v.  Lloyd,  Limited,  2  B.  W.  C.  C.  20 379,  380,  455 

V.  Lloyd,  Limited,  2  K.  B.  809 327 

Bridge  v.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  736 ■ 52 

Bridgewood  v.  Union  Iron  Works  Co.,  2  Cal.  I.  A.  C.  Dec.  599 315 

Briere  v.  Taylor,  126  Wis.  347,  105  N.  W.  817 821 

Briggs  V.  Mitchell,  4  B.  W.  C.  C.  400,  Ct.  of  Sess 242 

Brightman,  In  re,  220  Mass.  17,  107  N.  E.  527,  L.  R.  A.  1916A,  321,  8 

N.  C.  C.  A.  102 309,  407,  416,  510,  830 

Brine  v.  May,  Ellis,  Grace  &  Co.,  6  B.  W.  C  C.  134,  C.  A 127 

Brinkley,  In  re,  Op.  Sol.  Dept.  of  L.  (1915)  603 687 

Brintons,  Limited,  v.  Turvey,  6  W.  C.  C.  1,  C.  A.,  74  L.  J.  K.  B.  474. .  .302,  538 

V.  Turvey,  7  W.  C.  C.  1,  H.  L 302 

Brio  V.  Carpenter,  Eoxley  &  Herrick,  The  Bulletin,  N.  Y.,  vol.  1,  No.  5, 

p.    11 656 

Briscoe,  In  re.  Op.  Sol.  Dept.  of  L.  776 345 

Bristol  V.  Bristol,  1  Conn.  Comp.  Dec.  368 580 

V.  Gartland,  1  Cal.  I.  A.  C.  Dec.  632 262,  641 

Bristow,  In  re.  Op.  Sol.  Dept.  of  L.  150 343 

Brockman  v.  Sheridan,  2  Cal.  I.  A.  C.  Dec.  lOGl 205 

Broderick  v.  London  County  Council,  1  B.  W.  C.  C.  219,  C.  A 274,  541 

V.  San  Francisco  Stevedoring  Co.,  2  Cal.  I.  A.  C.  Dec.  293 741 

V.  Southern  Pac.  Co.,  4  N.  Y.  St.  Dep.  Rep.  371 482 

Broforst  v.  Blomfield,  The,  6  B.  W.  C.  C.  613 30a 

Brooker  v.  Warren,  9  W.  C.  C.  26,  C.  A 562 

Brooklyn  Mining  Co.  v.  Industrial  Ace.  Commission  of  California  (Cal.) 
159  Pac.    162 550 


Brooks  CASES  CITED  890 

Page 

Brooks  V.  Central  California  Traction  Co.,  2  Cal.  I.  A,  C.  Dec.  420 613 

Brown,  In  re  (Sup.)  159  N.  Y.  Supp.  1047 334 

Brown,  In  re.  Op.  Sol.  Dept.  of  L.  102 187 

Brown,  In  re,  Op.  Sol.  Dept.  of  L.  137 343 

Brown,  In  re.  Op.  Sol.  Dept.  of  L.  328 402 

V.  Berkeley  Daily  Gazette,  2  Cal.  I.  A.  C.  Dec.  844 283,  395,  433 

V.  Clark,  80  Conn.  419,  423,  68  Atl.  1001 824 

V.  Corona  Citrus  Ass'n,  2  Cal.  I.  A.  C.  Dec.  144 533,  534 

V.  Davies-Leavitt  Co.,  2  Cal.  I.  A.  C.  Dec.  12 787,  788 

V.  Decatur,  188  111.  App.  147 125,  339,  419 

V.  J.  J.  Thornecroft  &  Co.,  5  B.  W.  C.  C.  386 599,  676 

V.  Kemp,  6  B.  W.  C.  C.  725,  C.  A 462 

V.  Kent,  6  B.  W.  C.  C.  745,  C.  A 515 

V.  Kidman,  4  B.  W.  C.  C.  199,  C.  A 482 

V.  Lochgelly  Iron  &  Coal  Co.    (1907)  S.  C.  198,  Ct.  of  Sess 752 

y.  Mauston,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  97 199,  755 

V.  Pioneer  Fruit  Co.,  2  Cal.  I.  A.  C.  Dec.  827 395 

V.  Richmond  Light  &  R.  R.  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  12  376 

V.  Scott,  1  W.  C.  C.  11,  C.  C 405 

V.  Sheffield  Scientific  School,  1  Conn.  Comp.  Dec.  419 728 

V.  South  Eastern  &  Chatham  R.  Co.'s  Managing  Committee,  3  B.  W. 

C.  C.  428,  C.  A 663 

V.  Thornecroft  &  Co.,  5  B.  W.  C.  C.  386,  C.  A 599,  676 

V.  Watson,  Limited,  6  B.  W.  C.  C.  416,  Ct.  of  Sess 300,  491 

V.  Watson,  Limited,  7  B.  W.  C.  C.  259,  H.  L 300, 491 

Bruce  v.  Taylor  &  Maliskey  (Mich.)  158  N.  W.  153 822 

Bryant  v.  Fissell,  84  N.  J.  Law,  72,  86  Atl.  458,  460,  3  N.  C.  C.  A.  585 

29,  162,  276,  281,  288,  321,  322,  323,  324,  346, 
347,  396,  408,  433,  437,  464,  465,  570,  571,  839 

Bryce  v.  Edward  Lloyd  Co.,  2  B.  W.  C.  C.  26 397 

Bryce  &  Co.  v.  Connor,  7  F.  193,  Ct.  of  Sess 606 

Bryne  v.  Baltinglass  Rural  District  Council  &  Kelly,  5  B.  W.  C.  C.  566, 

C.  A 212 

Buchanan  v.  White  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  796 225,  227 

Bucherri  v.  Hartford  Rubber  Works  Co.,  1  Conn.  Comp.  Dec.  622 655 

Buckley  v.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases, 

186,  affirmed  218  Mass.  354,  105  N.  E.  979,  Ann.  Cas.  1916B,  474. . .  237 

v.  London  &  India  Docks,  2  B.  W.  C.  C.  327,  C.  A 586 

Buell  V.  New  York  Cent.  &  H.  R.  R.  R.  Co.,  The  Bulletin,  N.  Y.,  vol.  1, 

No.  5,  p.  12 48 

Bullard,  In  re,  Op.  Sol.  Dept.  of  L.  140 343 

Bullworthy  v.  Glanfield,  7  B.  W.  C.  C.  191,  C.  A 390 

Burbage  v.  Lee,  87  N.  J.  Law,  36,  93  Atl.  859 597 

Burgess  v.  Star,  2  Cal.  I.  A.  C.  269 299,  541 


891  CASES  CITED  Camellier 

Page 

Burgess  &  Co.  v.  Jewell,  4  B.  W.  O.  C.  145,  C.  A 507 

Burkard  v.  San  Francisco  Breweries,  2  Cal.  I.  A,  C.  Dec.  365 534,  711 

Burke,  In  re,  Op.  Sol.  Dept.  of  L.  139 343 

V.  Shepard,  1  Conn.  Comp.  Dec.  106 757 

Biurman  v.  Zodiac  'Steam  Fishing  Co.,  7  B.  W.  C.  C.  767,  C.  A 171 

Burnes  v.  Swift  &  Co.,  186  111.  App.  460 121 

BHrnham  v.  Thames  Nat.  Bank,  1  Conn,  Comp.  Dec.  339 173,  174 

Burnham  &  Co.  v.  Taylor,  3  B.  W.  C.  C.  569,  Ct.  of  Sess 213 

Burns,  In  re,  218  Mass.  8,  105  N.  E.  601,  Ann.  Cas.  1916A,  787,  5  N.  C.  C. 

A.  635 290,  507,  548,  674,  824 

In  re,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  5 581,  582,  713,  720 

V.  Manchester  &  Salford  Wesleyan  Mission,  99  L.  T.  581,  C.  A 182 

V.  Summerlee  Iron  Co.,  6  B.  W.  C.  C.  320,  C.  A 404 

Burrell  v.  Hollowa^  Bros.,  4  B.  W.  C.  C.  239,  241,  C.  A 749,  758,  761 

Burt  V.  Brigham,  117  Mass.  307 785 

Burwash  v.  Leyland  &  Co.,  5  B.  W.  C.  C.  663,  C.  A 473 

Busek  V,  Wisconsin  Gas  &  Electric  Co.,  Rep.  Wis.  Indus.  Com.  1914-15, 

p.  38 672 

Bush  V.  Ickleheimer  Bros.  Co.,  1  Cal.  I.  A.  C.  Dec.  522 415,  427,  465 

Bustamente  v.  Gate  City  Ice  &  Precooling  Co.,  2  Cal.  I.  A.  C.  Dec.  918.  .261,  268 

Butler,  In  re.  Op.  Sol.  Dept.  of  L.  502 572 

V.  Burton-on-Trent  Union,  5  B.  W,  C.  C.  355,  C.  A 420 

V.  Sheffield  Farms,  The  Bulletin,  N.  Y.,  vol.  1,  No.  4,  p.  11 310 

Butt  V.  Gellyceidrim  Colliery  Co.,  3  B.  W.  C.  C.  44,  C.  A 756 

V.  Provident  Clothing  Supply  Co.,  6  B.  W.  C.  C.  18,  C.  A 401 

Butti  V.  MacRorie-McLaren  Co.,  2  Cal.  I  A.  C.  Dec.  535 198 

Buzby,  In  re,  Op.  Sol.  Dept.  of  L.  141 343 

Byer's  Case,  84  Ohio  St.  408,  95  N.  E.  917,  38  L.  R.  A.  (N.  S.)  913 93 

Bystrom  Bros.  v.  Jacobson,  162    Wis.  180,  155  N.  W.  919 278,  279,  477 


Cadwalader,  In  re.  Op.  Sol.  Dept.  of  L.  182 345 

Cahill,  In  re,  159  N.  Y.  Supp.  1060 743 

Cain  V.  Leyland  &  Co.,  1  B.  W.  C.  C  351,  368,  C.  A 592 

v.  National  Zinc  Co.,  94  Kan.  679,  146  Pac.  1165,  148  Pac.  251.653,  694,  842 

Calef  V.  Union  Oil  Co.  of  California,  2  Cal.  I,  A,  C.  Dec.  488 765 

Calico  Printers'  Ass'n  v.  Higham,  5  B.  W.  C.  C.  110 579 

California  State  Board  of  Prison  Directors  v.  Dickerson,  1  Cal.  I.  A,  C. 

Dec.    262 227 

Callaghan  v.  Maxwell,  2  F.  420,  Ct.  of  Sess 457,  562 

Callender,  In  re.  Op.  Sol.  Dept.  of  L.  637 770 

Camellier  v.  Cardilli,  1  Conn.  Comp.  Dec.  215 135 


Cameron  CASES  CITED  892 

Page 
Cameron  v.  Chicago,  M,  &  St.  P.  R.  Co.,  63  Minn.  384,  65  N.  W.  652,  31 

L.  R.  A.  553 82 

V.  Pillsbury  (Cal.)  159  Pac.  149 173 

V.  Port  of  London  Authority,  5  B.  W.  C.  C.  416,  C.  A 492 

Campanella  v.  Frank  Stola  Const.  &  Bldg.  Co.,  The  Bulletin,  N.  Y.,  vol. 

1,  No.  12,  p.  17 361 

Campbell  v.  -^tna  Life  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  701 494 

V.  L.  E.  White  Lumber  Co.,  8  Cal.  I.  A.  C.  Dec.  33 700,  709 

V.  Los  Angeles,  2  Cal.  I.  A.  C.  Dec.  300 184 

Campos  V.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  747 54 

Canavan  v.  Universal,  The,  3  B.  W.  C.  C.  355,  C.  A 451 

Cannon  v.  Original  Min.  &  Mill.  Co.,  1  Cal.  I.  A.  C.  Dec.  278 264 

Canton  v.  Bender,  The  Bulletin,  N.  Y.,  vol.  1,  No.  8,  p.  12 332 

Cantor  v.  Rubin  Musicant  Co.,  3  N.  Y.  St.  Dep.  Rep.  392 173 

Cantwell  v.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  246 519 

Canwell  v.  Kelsall  Bros.  &  Beechiug,  5  B.  W.  C.  C.  667,  C.  A ,, 171 

V.  Kelsall  Bros.  &  Beeching,  6  B.  W.  C.  C.  480,  H.  L 171 

Cardife  Corp.  v.  Hall,  4  B.  W.  C.  C.  159,  1  K.  B.  1009 599,  606 

Cardinale  v.  Valencano,  Bulletin   No.  1,  111.,  p.  114 773,  790 

Cardoza  v.  Pacific  Gais  &  Electric  Co.,  1  Cal.  I.  A.  C.  Dec.  435 822 

V.  Pillsbury,  169  Cal.  106,  145  Pac.  1015 834 

Carey,  In  re.  Op.  Sol.  Dept.  of  L.  139 343 

Carindufe  v.  Gilmore,  7  B.  W.  C.  C.  981,  C.  A 380,  415 

Carini  v.  Nickel  Plate  R.  Co.,  4  N.  Y.  St.  Dep.  Rep.  423 380,  448 

Carls  V.  Pekin  Cooperage  Co.,  Bulletin  No.  1,  111.,  p.  75 398 

Carlson  v.  Emanuelson,  1  Conn.  Comp.  Dec.  139 522,  532,  579 

Carmicheal  v.  Hogrefe,  2  Cal.  I.  A.  C.  Dec.  734 497 

Carney,  In  re.  Op.  Sol.  Dept.  of  L.  173 345 

Carpenter  v.  Detroit  Forging  Co.  (Mich.)  157  N.  W.  374 629,  684,  729,  828 

Can-igan  v.  Winchester  Repeating  Arms  Co.,  1  Conn.  Comp.  Dec.  327 443 

Carroll,  In  re,  Op.  Sol.  Dept.  of  L,  367 648 

V.  Knickerbocker  Ice  Co.,  218  N.  Y.  435,  113  N.  E.  507,  reversing  169 

App.  Div.  450,  155  N.  Y.  S.  1 512,  776,  777,  836,  841 

V.  United  States  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  488 469 

V.  What  Cheer  Stables  Co.  (R.  I.)  96  Atl.  208 280,  461,  463,  825 

Carstens  v.  Pillsbury  (Cal.)  158  Pac.  218 749,  785,  788,  793,  820 

Carswell  v.  Sharp,  3  B.  W.  C.  C.  552,  Ct.  of  Sess 124,'  180 

Carter,  In  re,  221  Mass.  105,  108  N.  E.  911,  9  N.  C.  C.  A.  579 238 

V.  Hume-Bennett  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  42 348,  413 

V.  Llewellyn  Iron  Works,  2  Cal.  I.  A.  C.  Dec.  971 487 

Casanegri  v.  Madera  Sugar  Pine  Co.,  1  Cal.  I.  A.  C.  Dec.  589 693,  707 

Casey  v.  Humphries,  6  B.  W.  C.  C.  520,  C.  A.,  4  N.  C.  C.  A.  881 563 

Cason  V.  Star  Laimdry,  1  Cal.  I.  A.  C.  Dec.  485 664 

Casparson  v.  Munn,  Bulletin  No.  1,  111.,  p.  151 390 


893  CASES  CITED  Ciilton 

Page 

Cass  V.  Great  Lakes  Dredge  &  Dock  Co.,  Bulletin  No.  1,  111.,  p.  99 725 

Cassell  V.  Simon  Millinery  Co.,  2  Cal.  I.  A.  C.  Dec.  1071 564 

Cassidy,  In  re,  Op.  Sol.  Dept.  of  L.  180 345 

Casson  v.  Northwestern  Pac.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  729 G56 

Castellotti  v.  McDonnell,  1  Cal.  I.  A.  C.  Dec.  351 197,  200 

Caton  V.  Summerlee  &  M.  I.  &  S.  Co.,  39  Scoteli  L.  R.  7G2 368 

Catterson  v.  Los  Angeles  County,  2  Cal.  I.  A.  C.  Dec.  981 658 

Catto  V.  G.  Cudemo  &  Co.,  1  Conn.  Comp.  Dec.  374 655 

Cavagnero  v.  American  Mills  Co.,  1  Conn.  Comp.  Dec.  163 381,  448 

Cavanaugh  v.  Morton  Salt  Co.,  152  Wis.  375,  140  N.  W.  53 109 

Cavett,  In  re.  Vol.  I,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  150 228 

Cegrelski  v.  Lehon  Co.,  Bulletin  No.  1,  111.,  p.  35 717 

Central  R.  Co.  of  New  Jersey  v.  Kellett,  86  N.  J.  Law,  84,  90  Atl.  1005, 

5  N.  C.  C.  A.  529 722 

Cernich,  In  re.  Op.  Sol.  Dept.  of  L.  539 649 

Cerny  v.  Wood  Street  Mill  Co.,  Bulletin  No.  1,  111.,  p.  52 779 

Cetefont  v.  Camden  Coke  Co.,  78  N.  J.  Law,  662,  75  Atl.  913,  27  L.  R.  A. 

(N.   S.)    1058 61 

Chaboya  v.  Becker,  2  Cal.  I.  A.  C.  Dec.  958 365 

Chains  V.  London  &  S.  W.  R.  Co.,  2  K.  B.  154 426,  433,  437 

V.  London  &  S.  W.  R.  Co.,  7  W.  C.  C.  23,  C.  A 284 

Chamberlain  v.  Southern  Fish  Co.,  2  Cal.  I.  A.  C.  Dec.  424 317 

Chambers,  In  re,  Op.  Sol.  Dept.  of  L.  291 371 

Chandler  v.  Great  Western  R.  Co.,  5  B.  W.  C.  C.  254,  C.  A 468 

Chapin  v.  Jenkins,  50  Kan.  385,  31  Pac.  1084 763 

Chappelle  v.  412  Broadway  Co.   (N.  Y.)   112  N.  E.  569,  reversing  (Sup.) 

155  N.  Y.  Supp.  858 331 

Charles  v.  Walker,  Limited,  2  B.  W.  C.  C.  5,  C.  A 474 

Charvil  v.  Manser  &  Co.,  5  B.  W.  C.  C.  385,  C.  A 474 

Chase,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  53 352 

Cheever,  In  re,  219  Mass.  244,  106  N.  E.  861 201 

Chenoweth  v.  Mitchell,  2  Cal.  I.  A.  C.  Dec.  75 487 

Cheski  v.  Connecticut  Mills  Co.,  1  Conn.  Comp.  Dec.  213 594 

Chicago,  K.  &  W,  R.  Co.  v.  Chase  County  Com'rs,  49  Kan.  399,  30  Pac. 

456 763 

Chicago,  M.  &  St.  P.  R.  Co.  v.  Westby,  102  C.  C.  A.  65,  178  Fed.  619,  47  L. 

R.  A.   (N.  S.)  97 80 

Chicago  Sav.  Bank  &  Trust  Co.  v.  Chicago  Rys.  Co.,  Bulletin  No.  1,  111., 

p.   104 330,  685,  790 

Chicago  &  N.  W.  R.  Co.  v.  Railroad  Commission,  156  Wis.  47,  145  N.  W. 

216,  974 772,  780,  829 

Chiesa  v.  United  States  Crushed  Stone  Co.,  Bulletin  No.  1,  111.,  p.  82 503 

Childs  V.  American  Exp.  Co.,  197  Mass.  337,  84  N.  E.  128 779 

Chilton  V.  Blair  &  Co.,  7  B.  W.  C.  C.  607,  C.  A- 457 


Ching  Sbee  CASES  CITED  894 

Page 

Ching  Shee  v.  Madera  Sugar  Pine  Co.,  2  Cal.  I.  A.  O.  Dec.  1014 235,  791 

Chippewa  B.   Co.  v.  Durand,   122  Wis.  85,  99  N.  W.  G03,   106  Am.   St. 

Rep.    931 821 

Chisholm  v.  Walker  &  Co.,  2  B.  W.  C  C.  261,  Ct.  of  Sess 212 

Christensen  v.  R.  W.  Bartelmann  Co.,  273  111.  346,  112  N.  E.  686 817 

Christiansen  v.  St.  Mary's  Hospital,  Rep.  Wis.  Indus.  Com.  1914-15,  p. 

20    466,  532 

Christiansen  v.  Barber,  Bulletin,  No.  1,  111.,  p.  71 330 

Christophson  v.  Turner  Const.  Co.,  1  Conn.  Comp.  Dec.  591 714 

Chulata  v.  Ransome-Crummey  Const.  Co.,  2  Cal.  I.  A.  C.  Dec.  1026 260 

Cianetti  v.  Fremont  Consol.  Mining  Co.,  2  Cal.  I.  A.  C.  Dec.  947 679 

Cieck  V.  Standard  Oil  Co.,  1  Cal.  I.  A.  C.  Dec.  135 ~. 500 

City  of  Butte  v.  Industrial  Accident  Board  (Mont.)  156  Pac.  130 125 

City  of  Cleveland  v.  Hastings,  2  Cal.  I.  A.  C.  Dec.  15 563 

City  of  Goshen  v.  England,  119  Ind.  368,  21  N.  E.  977,  5  L.  R.  A.  253 513 

City  of  Milwaukee  v.  Althofe,  156  Wis.  68,  145  N.  W.  238,  L.  R.  A.  1916A, 

327    359 

V.  Industrial   Commission,   160   Wis.   238,   239.   240,   151  N.   W.   247 

447,  477,  487,  823,  825,  826 
V.  Miller,  154  Wis.  652,  144  N.  W.  188,  L.  R.  A.  1916A,  1,  Ann.  Cas. 

1915B,  847,  4  N.  C.  C.  A.  149 7,  8,  27,  190,  688,  691, 

693,  714,  716,  720,  721 

V.  Ritzow,  158  Wis.  376,  149  N.  W.  480,  7  N.  C.  C.  A.  498 644,  645 

City  of  Superior  v.  Industrial  Commission,  160  Wis.  541,  152  N.  W.  151, 

9  N.  C.  C.  A.  960 125,  347 

City  of  Winfield  v.  Bell,  89  Kan.  96,  130  Pac.  680 73 

Clapp  V.  Carter,  7  B.  W.  C.  C.  28,  C.  A 753 

Clark,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  125 353 

In  re.  Op.  Sol.  Dept.  of  L.  49 220 

In  re.  Op.  Sol.  Dept.  of  L.  120 342 

In  re.  Op.  Sol.  Dept.  of  L.  188 275,  277,  291 

In  re.  Op.  Atty.  Gen.,  Op.  Sol.  Dept.  of  L.  200 291 

In  re.  Op.  Sol.  Dept.  of  L.  270 300 

In  re.  Op.  Sol.  Dept.  of  L.  381 596 

V.  Clark   (Mich.)    155  N.  W.  507 400,  434 

V.  Fruit  Dispatch  Co.,  2  Cal.  I.  A.  C.  Dec.  993 727 

V.  Gaslight  &  Coke  Co.,  7  W.  C.  C.  119,  C.  A 606 

V.  Gaslight  &  Coke  Co.,  21  L.  T.  R.  184 601 

V.  Los  Angeles  County,  1  Cal.  I.  A.  C.  Dec.  623 551,  590 

V.  Morrison  &  Burns,  2  Cal.  I.  A.  O.  Dec.  90 178 

V.  Taylor  &  Co.,  7  B.  W.  C.  C.  856,  Ct.  of  Sess.  871,  H.  L 504 

Clarke,  In  re.  Op.  Sol.  Dept.  of  L.  133 342 

V.  Bailieborough  Co-Op.  Agricultural  &  Dairy  Soc,  47  Ir.  L.  T.  R. 

113,  C.  A 214 


895  CASES   CITED 


Coleman 


Page 

Clarke  v.  Bigelow-Hartf ord  Carpet  Co.,  1  Conn.  Comp.  Dec.  166 655 

Clarkson  v.  Charente  S.  S.  Ca,  6  B.  W.  C.  C.  540,  C.  A 312 

Claudio  V.  California  Street  Cable  R.  Co.,  3  Cal.  I.  A.  C.  Dec.  7 

236,  246,  260,  261,  271 
Clausen,  In  re  (Clausen's  Case)  65  Wash.  156,  117  Pac.  1102,  37  L.  R.  A. 

(N.  S.)   466 .*; . .  .65,  68 

Clayton  v.  Hardwick  Colliery  Co.,  7  B.  W.  C.  C.  643,  C.  A 434 

Clayton  &  Co.  v.  Hughes,  A.  C.  242,  26  T.  L.  R.  359 276 

Clem  V.  Chalmers  Motor  Car  Co.,  Op.  Mich.  Indus.   Ace.  Bd.,   Bui.  No. 

3,  p.  40 384,  412,  550 

V.  Chalmers  Motor  Co.,  178  Mich.  340,  144  N.  W,  848,  L,  R.  A.  1910A, 

352,  4  N.  C.  C.  A.  876 389,  444,  550 

Clement!  v.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  330 612 

Clements,  In  re.  Op.  Sol.  Dept.  of  L.  228 306 

V.  Columbus  Sawmiir  Co.,   Vol.  1,  No.  7,  Bui.   Ohio   Indus.  Com.  p. 

161 26,  117,  199,  202,  327 

Cleveland  v.  Foland,  174  Ind.  411,  91  N.  E.  594,  92  N.  E.  165 79 

V.  Hastings,  2  Cal.  I.  A.  C.  Dec.  15 194,  197,  563 

Cleverley  v.  Gas  Light  &  Coke  Co.,  1  B.  W.  C.  C.  82,  H.  L 570 

Clifford  V.  Joy,  2  B.  WL  C.  C.  32,  C.  A 420 

Clme    V.    Studebaker    Corp.    (Mich.)    155   N.    W.   519,    L.    R.    A.    1916C, 

1139    300,   469,  626 

Clover,  Clayton  &  Co.  v.  Hughes,  3  B,  W.  C.  C.  275,  280,  H.  L 

276,  282,  306,  461 

V.  Hughes    (1910)  A.  C.  242 309 

Coakley  v.  Coakley,  216  Mass.  71,  102  N.  E.  930,  Ann.  Cas.  1915A,  867, 

4  N.  C.  C.  A.  508 , 267 

V.  Mason  Mfg.  Co.,  37  R.  I.  46,  90  Atl.  1073 104 

Coakley's  Case,  216  Mass.  71,  102  N.   E.  930,  Ann.  Cas.   1915A,   807,   4 

N.  C.  C.  A.  508 25 

Coal  Co.  V.  Illinois,  185  U.  S.  203,  22  Sup.  Ct.  616,  46  L.  Ed.  872 82 

Cochran  v.  Fenton,  1  Conn.  Comp.  Dec.  690 541 

V.  Whiting  Wrecking  Co.,  1  Cal.  I.  A.  C,  Dec.  186 694 

Cody  V.  Beach,  1  Conn.  Comp.  Dec.  447 486 

Coe  V.  Fife  Coal  Co.,  2  B.  W.  C.  C.  8,  Ct.  of  Sess 279,  542 

Coelho  V.  Rideout  Co.,  2  Cal.  I.  A.  C.  Dec.  773 548,  551,  556 

Coffey  V.  Borden's  Condensed  Milk  Co.,  1  Conn.  Comp.  Dec.  167 203,  493 

Cohen  v.  Union  News  Co.,  1  Conn.  Comp.  Dec.  62 37,  44s 

Cohnhoff  V.  Thomas  &  Schneider  Art  Glass  Co.,  2  Cal.  I.  A.  C.  Dec.  564. .  602 

Cokolon  V.  Kentra,  The,  5  B.  W.  C.  C.  658,  C.  A 415 

Cole  V.  Callahan  &  Sperry,  4  N.  Y.  St.  Dep.  Rep.  348 277 

V.  Cole,  27  Wis.  531 !  ] '. !  821 

V.  Evans,  Son,  Lescher  &  Webb,  4  B.  W.  C,  C.  138,  C.  A 401 

Coleman,  In  re.  Op.  Sol.  Dept.  of  L.  544 652 


Coleman  CASES  CITED  896 

Page 

Coleman  v.  Guilfoy  Cornice  Works,  1  Cal.  I.  A,  C.  Dec.  31 587,  692 

Coller  V.  Donohue,  1  Conn.  Comp.  Dec.  654 699 

Collins  V.  Bodin,  2  Cal.  I.  A.  C.  Dec.  153 556,  561,  562 

V.  Brooklyn  Union  Gas  Co.  (Sup.)  156  N,  Y.  S.  957,  959,  171  App.  Div. 

381    18,  419,  780,  795,  823 

V.  Collins,  2  I.  R.  104,  C.  A 324,  439 

V.  Terminal  Transfer  Co.   (Wash.)   157  Pac.  1092 341 

V.  York  Bradford  Co.,  2  Cal.  I.  A.  C.  Dec.  220 593 

Colonial  Development  Co.  v.  Bragdon,  219  Mass.  170,  106  N.  E,  633 159 

Colot  V.  Union  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  512 616,  665 

Colson  V,  Burbank,  2  Cal.  I.  A.  C.  Dec.  127 351,  439 

Coltman  v.  Morrison  &  Mason,  7  B.  W.  C.  C.  194,  C.  A 758 

Comerford,  In  re  (Mass.)  113  N.  E.  460 13G,  221 

Com.  V.  Mink,  123  Mass.  422,  25  Am.  Rop.  109 483 

Condron  v.  Gavin  Paul  &  Sons,  6  F.  29,  Ct.  of  Sess 546,  553 

Connell  &  Co.  v.  Barr,  116  L.  T.  127,  Ct.  of  Sess 511 

Conner  v.  Acme  Cement  &  Plaster  Co.,  1  Cal.  I.  A.  C.  Dec.  143 692,  717,  788 

V.  Drake  (Conner's  Case)   1  Ohio  St.  166 72 

Conners  v.  Public  Service  Electric  Co.  (N.  J.)  97  Atl.  792 226,  256,  257, 

595,  650,  686,  842 

V.  Sugar  Pine  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  879 54,  563 

Connole  v.  Norfolk  &  W.  R.  Co.  (D.  C.)  216  Fed.  823 50 

Connolly  v.  California  Salt  Co.,  2  Cal.  I.  A.  C.  Dec.  115 692 

V.  Connolly,  2  Cal.  I.  A.  C.  Dec.  790 216 

Connor,  In  re,  Op.  Sol.  Dept.  of  L.  330 355 

Connors  v.  Gross,  144  N.  Y.  Supp.  18 751 

V.  Semet-Solvay  Co.,  159  N.  Y.  Supp.  431 739 

Consolidated  Arizona  Smelting  Co.  v.  Ujack,  15  Ariz.  382,  139  Pac.  465, 

5  N.  C.  C.  A.  742 24,  91,  102,  739,  741 

Consumers'  Lignite  Co.  v.  Grant  (Tex.  Civ.  App.)  181  S.  W.  202 65,  66,  67, 

73,  74,  84,  109 
Contractors'  IMut.  Liability  Ins.  Co.,  In  re,  217  Mass.  511,  105  N.  E.  376. . .  634 

In  re  (Mass.)  113  N.  E.  460 136,  221 

Contractors  or  Jobbers  at  Neopit  Indian  Sawmill,  In  re.  Op.  Sol.  Dept.  of 

L.  p.  58 220 

Conway  v.  Pumpherston  Oil  Co.,  4  B.  W.  O.  C.  392,  Ct.  of  Sess 390,  391 

Cook  V.  Home  Telephone  &  Telegraph  Co.,  2  Cal.  I,  A.  C,  Dec.  120 378 

V.  Manvers  Main  Collieries,  7  B.  W.  C.  C.  696,  C.  A 383,  456 

V.  Montreal,  The,  6  B.  W,  C.  C.  220,  C.  A 450 

V.  New  York  Cent.  &  H.  R.  R.  Co.,  The  Bulletin,  N.  Y.,  Vol.  1,  No.  8, 

p.    9 412 

Coons  V.  John  De  Michiel  &  Bros.,  1  Conn.  Comp.  Dec.  446 727 

Cooper,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  180 117,  180 

V.  Massachusetts  Employes  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  573. .  282 


897  CASES   CITED  Craycroft 

Page 

Cooper  V.  New  Haven  Rig^ng  Co.,  1  Conn.  Comp.  Dec.  157 454,  566 

Corcoran  v.  Farrel  Foundry  &  Machine  Co.,  1  Conn.  Comp.  Dec.  42.  ..256,  4S0 

Corea  v.  Higuera,  153  Cal.  451,  95  Pac.  882,  17  L.  R.  A.  (N.  S.)  1018 785 

Corliss  V.  Keown,  207  Mass.  149,  93  N.  E.  143 122 

CoiTi  Ass'n  V.  Auditor  General,  150  Mich.  69,  113  N.  W.  582 70 

Coronado  Beach  Co.  v.  Pillsbury  (Cal.)  158  Pac.  212,  218 324,  408,  409,  442 

Corral  v.  William  H.  Hamlj-n  &  Son  (R.  I.)  94  Atl.  877 464,  513,  778,  839 

Cory  Bros.  &  Co.  v.  Hughes,  4  B.  W.  C.  C.  291 602 

Cory  &  Son  v.  France,  Fenwick  &  Co.,  1  K.  B.  114,  C.  A 155 

Costa  V.  O.  W.  Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  457 531,  750 

Costello,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.,  p.  54 586 

V.  Kelsall  Bros.  &  Beeching,  5  B.  W.  C.  C.  667,  C.  A 171 

V.  Kelsall  Bros.  &  Beeching,  6  B.  W.  C.  C.  480,  H.  L 171 

V.  Taylor,  217  N.  Y.  179,  111  N.  E.  755,  affirming  169  App.  Div.  905, 

153  N.  Y.  Supp.  1111,  11  N.  C.  C.  A.  320 331,  337 

Cotter  V.  Johnson,  5  B.  W.  C.  C.  568,  C.  A 191 

Cottun  V.  I.  Newman  &  Sons,  1  Conn.  Comp.  Dec,  289 619 

Coughlin  V.  R.  Wallace  &  Sons,  1  Conn.  Comp.  Dec.  652 718 

Conlson  v.  South  Moor  Colliery  Co.,  8  B.  W.  C.  C.  253,  C.  A 751 

Coulthard  v.  Consett  Iron  Co.,  8  W.  C.  C.  87,  C.  A 246 

Courter  v.  Simpson  Const.  Co.,  264  111.  488,  106  N.  E.  350 826 

Covert  V.  Goldstone,  1  Cal.  I.  A.  C.  Dec.  618 498 

Cowan,  In  re,  Op.  Sol.  Dept.  of  L.  184 345 

V.  Simpson,  3  B.  W.  C.  C.  4,  C.  A 609 

Cowell  V.  Mason,  1  Cal.  I.  A.  C.  Dec.  614 464 

Cowen  V.  Cowen  New  Shirt  Laundry,  The  Bulletin,  N.  Y.,  Vol.  1,  No.  8, 

p.  11    , 436 

Cowles  V.  Alexander  &  Kellogg,  2  Cal.  I.  A.  C.  Dec.  615 197,  204,  206 

V.  Wilkenda  Land  Co.,  1  Conn.  Comp.  Dec.  361 627 

Coyle  V.  Massachusetts  EJmployes  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cases, 

704    202,  591 

Coylton  Coal  Co.  v.  Davidson,  7  F.  727,  Ct.  of  Sess 129 

Craft  V.  State,  3  Kan.  451 735 

Craig,  In  re.  Vol.  1,  No,  7,  Bui.  Ohio  Indus.  Com.  p.  38 352 

V.  Axt,  1  Cal.  L  A.  C.  Dec.  72 587,  588,  590 

V.  Calabria,  The,  7  B.  W.  C.  C.  932,  Ct.  of  Sess 388,  449 

V.  Hartson,  2  Cal.  I.  A,  C,  Dec,  235 192 

Crandall,  In  re.  Op.  Sol.  Dept.  of  L.  77 188 

Cranfield  v.  Ansell,  4  B,  W.  C.  C.  57,  C.  A 674 

Craske  v.  Wigan,  2  B.  W.  C.  C.  35,  C.  A 420 

V.  Wigan,  2  K.  B.  635 426 

Crawford,  In  re.  Op.  Sol.  Dept.  of  L.  56 220 

Craycroft  v.  Craycroft-Herrold  Brick  Co.,  2  Cal.  I.  A.  C.  Dec.  654 173,  439 

Hon. Comp. — 57 


Creamer  CASES  CITED  898 

Page 

Creamer,  In  re,  Op.  Sol.  Dept.  of  L.  109 l«t) 

Crehan  v.  Los  Angeles,  1  Cal.  I.  A.  C.  Dec.  252 185 

Cremins  v.  Gest,  Keen  &  Nettlefold,  1  B.  W.  C.  C.  160,  C.  A 377 

V.  Gest,  Keen  &  Nettlefold,  1  K.  B.  4G9 376 

Cripp,  In  re  (Cripp's  Case)  216  Mass.  5S6,  101  N.  E.  565,  Ann.  Cas.  1915B, 

828 639,  682,  721,  739,  710,  836 

Cripps  V.  ^tna  Life  Ins.  Co.,  2  IMass.  Wk.  Comp.  Cases,  68,  affirmed  216 

Mass.  586,  Ann.  Cas.  1915B,  828,  104  N.  E.  565 299,  411 

Cristoforo   v.    Employers'    Liability   Assur.    Corp.,    2    Mass.    Wk.    Comp. 

Cases,  364    543 

Crittenden  v.  Bobbins,  1  Conn.  Comp.  Dec.  523 211 

Croad  v.  Paraffine  Paint  Co.,  1  Cal.  I.  A.  C.  Dec.  179 40 

Crockett  v.  State  Ins.  Fund,  170  App.  Div.  122,  155  N.  Y.  Supp.  692 819 

Crofut  V.  Bredow  &  Bohm,  1  Conn.  Comp.  Dec.  524 531 

Cromowy  v.  Sulzberger  &  Sons  Co.,  Bulletin  No.  1,  111.,  p.  37 348,  416 

Cronin  v.  Silver,  4  B.  W.  C.  C.  221,  C.  A 404 

Crooks  V.  Tazewell  Coal  Co.,  263  111.  343,  105  N.  E.  132,  Ann.  Cas.  1915C, 

304,  5  N.  C.  C.  A.  410 64,  101,  107,  731 

Crosby  v.  Strong,  2  Cal.  I.  A.  C.  Dec.  408 207,  216 

Crouch  V.  Bitter,  2  Cal.  I.  A.  C.  Dec.  702 488 

Crow  V.  Los  Angeles  Ry.  Corp.,  1  Cal.  I.  A,  C.  Dec.  449 376 

Crowley  v.  Lowell,  223  Mass.  288,  111  N.  E.  786 1S9,  461 

Crucible  Steel  Forge  Co.  v.  Moir,  135  C.  C.  A.  49,  219  Fed.  151,  8  N.  C. 

C.  A.  1006 109 

Cruz  V.  California  Portland  Cement  Co.,  2  Cal.  I.  A.  C.  Dec.  155 563 

Csuprinski  v.  Mechanical  Mfg.  Co.,  Bui.  No.  1,  111.,  p.  105 627 

Cue  V.  Port  of  London  Authority,  7  B.  W.  C.  C.  447,  O.  A 586,  592 

Cuebas  v.  Atchison,  T.  &  S.  F.  R.  Co.,  3  Cal.  I.  A.  C.  Dec.  17 53 

Cunka  v.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  "Wk.  Comp.  Cases,  491. .  616 

Cunningham,  In  re.  Op.  Sol.  Dept.  of  L.  81 188 

V.  Buffalo  C.  &  B.  Rolling  Mills  (Sup.)  155  N.  Y.  Supp.  797.  .631,  821,  823 

V.  McGregor,  3  F.  775,  Ct.  of  Sess 245 

V.  McNaughton  &  Sinclair,  3  B.  W.  C.  C.  577,  Ct.  of  Sess 674 

V.  Northwestern  Imp.  Co.,  44  Mont.  180,  119  Pac.  554 71,  74,  82,  85,  98 

Cunningham's  Case,  44  Mont.  ISO,  119  Pac.  554 62 

Curless  v.  Peninsula  Warehouse,  1  Cal.  I.  A.  C.  Dec.  354 557 

Currie  v.  Royal  Indemnity  Co.,  2  Mass.  Wk.  Comp.  Cases,  174 490 

Curry  v.  Dosford  &  Sons,  8  B.  W.  C.  C.  19,  C.  A 609 

V.  Hull,  2  Cal.  I.  A.  C.  Dec.  994 727 

Curtis  V.  Plumbtre,  6  B.  W.  C.  C.  87,  C.  A 212 

V.  Talbot  &  Kidderminster  Infirmary  Committee,  5  B.  W.  C.  C.  41, 

C.    A 401 

Cushner  v.  H.  C.  Rowe  &  Co.,  1  Conn.  Comp.  Dec.  574 655,  789 

Cutaria  v.  Swieberg,  Bulletin  No.  1,  111.,  153 748,  773 


899  CASES  CITED  Dearborn 

Page 

Cutty  V.  Carson,  125  Md.  25,  93  Atl.  302,  305 28 

CjTlier  V.  United  Development  Co.,  1  Cal.  I.  A.  C.  Dec.  425 133,  705 

D 

Dabila  v.  Brandon  &  Lawson,  1  Cal.  I.  A.  C.  Dec.  239 622 

Dafe  V.  Midland  Colliery  Owners'  Mut.  Indemnity  Co.,  5  B.  W.  C.  0.  G7, 

C.  A 146 

V.  Midland  Colliery  Owners'  Mut.  Indemnity  Co.,  6  B.  W.  C.  C.  799, 

H.  L 146 

Dahl  V.  Jensen,  2  Cal.  I.  A.  C.  Dec.  749 718 

Daigle  v.  Steele  &  Johnson  Mfg.  Co.,  1  Conn.  Comp.  Dec.  19G 727 

Dailly  v.  Watson,  2  F.  1044,  Ct.  of  Sess 560 

Daily  News  v.  McNamara  &  Co.,  7  B.  W.  C.  C.  11,  K.  B.  D 156 

Dale  V.  Saunders  Bros.  (In  re  Workmen's  Compensation  Commission)  218 
N.  Y.  59,  112  N.  E.  571,  affirming  171  App.  Div.  528,  157  N.  Y.  S.  1062. . . 

175,  330,  336,  394,  826 

Dalgiesh  v.  Gartside  &  Co.,  7  B.  W.  C.  C.  535,  C.  A 757 

Dalton  V.  Connecticut  Co.,  1  Conn.  Comp.  Dec.  142 551 

V.  Employers'    Liability   Assur.    Corp.,    2    Mass.    Wk.    Comp.    Cases, 

231   347,  414 

Da  Duz  V.  Pddeout,  2  Cal.  I.  A.  C.  Dec.  359 226,  227 

Daly  V.  Mahoney  Bros.,  1  Cal.  I.  A.  C.  Dec.  625 807 

V.  Mahoney  Bros.,  2  Cal.  I.  A.  C.  Dec.  34 809 

Damerow  v.  Paine  Lumber  Co.,  Eep.  Wis.  Indus.  Com.  1914-15,  p.  34 308 

Damps  V.  Michigan  Cent.  R.  Co.,  Mich.  Wk.  Comp.  Cases  (1915)  25 748,  764 

Damrau  v.  Kuetemeyer,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  19 645 

Dana  v.  De  Turk,  2  Cal.  I.  A.  C.  Dec.  954 198 

Daniels  v.  Charles  Boldt  Co.  (W.  Va.)  88  S.  E.  613 101 

Darlington  v.  Roscoe  &  Sons,  9  W.  C.  C.  1,  C.  A 254 

David  V.  Windsor  Steam  Coal  Co.,  4  B.  W.  C.  C.  177,  C.  A 607 

Davidheiser  v.  Hay  Foundry  &  Iron  Works,  87  N.  J.  Law,  6SS.  94  Atl. 

309,  affirming  94  Atl.  1103 39,  41,  593 

Davies  v.  Crown  Perfumery  Co.,  6  B.  W.  C.  C.  649,  C.  A 404 

V.  Gillespie,  5  B.  W.  C.  C.  64,  C.  A 432 

V.  Point  of  Ayr  Collieries,  2  B.  W.  C.  C.  157,  C.  A 760 

V.  Rhymney  Iron  Co.,  2  W.  C.  C.  22,  C.  A 378 

V.  Rhymney  Iron  Co.,  16  Times  Law  Rep.  329 376 

Davis,  In  re.  Op.  Sol.  Dept.  of  L.  516 651 

Davis,  In  re,  Op.  Sol.  Dept.  of  L.  740 317 

Day  V.  Lincoln  Sightseeing  Co.,  1  Cal.  I.  A.  C.  Dec.  209 710 

Dazy  V.  Apponaug  Co.,  36  R.  I.  81,  S9  Atl.  160,  4  N.  C.  C.  A.  594 224,  225 

Dean  v.  London  &  N.  W.  R.  Co.,  3  B.  W.  C.  C.  351,  C.  A 492 

Dearboi-n  v.  Peugeot  Auto  Import  Co.,  170  App.  Div,  93,  155  N.  Y.  Supp. 
769    738,  820 


Deavers  CASES  CITED  900 

Page 

Deavers,  In  re,  Vol.  1,  No.  7,  Bui.  Oblo  Indus.  Com.  p.  62 402 

De  Biasi  v.  Normandy  Water  Co.  (D.  C.)  228  Fed.  235 781,  732,  733 

De  Constantin  v.  Public  Service  Commission,  75  W.  Va.  32,  83  S.  E.  88, 

L.  R.  A.  1916A,  329 828 

Decormier  v.  Western  Indemnity  Co.,  2  Cal.  I.  A.  C.  Dec.  764 491 

Decounter  v.  United  Green  water  Copper  Co.,  2  Cal.  I.  A.  C.  Dec.  700. .. .  658 

Deem  v.  Kalamazoo  Paper  Co.  (Mich.)  155  N.  W.  584 825 

Deeny  v.  Wright  &  Cobb  Lighterage  Co.,  36  N,  J.  Law  J.  121 36 

De  Fazio  v.  Goldschmidt  Detinning  Co.  (N.  J.  Sup.)  88  Atl.  705,  4  N.  C. 

C.  A.  716 312,  325 

De  Fillipis  v.  Falkenberg,  170  App.  Div.  153,  155  N.  Y.  Supp.  761 284,  321, 

383,  444 
De  Francesco  v.  Piney  Mining  Co.  (W.  Va.)  86  S.  B.  777,  10  N.  C.  C.  A. 

1015    85,  111 

Deibeikis  v.  Link-Belt  Co.,  261  111.  454,  104  N.  E.  211,  215,  Ann.  Cas. 

1915A,  241,  5  N.  C.  C.  A.  401 64,  69,  81,  82,  85,  92,  95,  96,  99,  100,  111 

De  La  Gardelle  v.  Hampton  Co.,  167  App.  Div.  617,  153  N.  Y.  Supp.  162, 

9  N.  C.  C.  A.  703 329 

V.  Hampton  Co.,  109  App.  Div.  905,  153  N.  Y.  Supp.  1112 336 

Delaware,  L.  &  W.  R.  Co.  v.  Hardy,  59  N.  J.  Law,  35,  34  Atl.  986 839 

Delgado  v.  California  I'ortland  Cement  Co.,  1  Cal.  I.  A.  C.  Dec.  436.  .247,  248, 

262,  269 

DeLong  v.  Krebs,  1  Cal.  I.  A.  C.  Dec.  502 399,  410,  412,  806,  811 

V.  Krebs,  2  Cal.  I.  A.  C.  Dec.  256 794 

V.  Krebs,  2  Cal.  I.  A.  C.  Dec.  376 402 

DeMott  V.  Stone  &  Webster  Const.  Co.,  1  Cal.  I.  A.  C.  Dec.  187 689,  713 

Denehy  v.  Panama-Pacific  International  Exposition  Co.,  1  Cal.  I.  A.  C. 

Dec.  109  677,  700,  706 

Denker  v.  Pacific  Stevedoring  &  Ballasting  Co.,  1  Cal.  I.  A.  C.  Dec.  14 778 

Dennehy  v.  Flinn  &  Tracy,  1  Cal.  I.  A.  C.  Dec.  302 272,  641 

Denver-Iiaraine  Realty  Co.  v.  Wyoming  Trout  &  Produce  Co.,  219  Fed. 

155,  135  C.  C.  A.  53 110 

DePalma  v.  Home  Const.  Co.,  1  Conn.  Comp.  Dec,  Co.  358 124 

De  Pasquale  v.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk.  Comp. 

Cases,  497 237 

V.  Mason  INIfg.  Co.  (R.  I.)  97  Atl.  816 105,  106 

Derbeck  v.  Pfister  &  Vogel  Leather  Co.,  Bui.  Wis.  Indus.  Com.  Vol.  1, 

p.    92    773 

Derkinderen  v.  Rundle  Mfg.  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  16...  280 

De  Rosa  v.  Fred  T.  Ley  &  Co.,  1  Conn.  Comp.  Dec.  75 531 

Detroit  Steel  Products  Co.  v.  Jendrus,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No. 

3,  p.  21 533 

Detwiler  v.  Kettering,  2  Cal.  I.  A.  C.  Dec.  810 219 


901  CASES  CITED  Dodge 

Page 
Devaney  v.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases, 

233    235 

Devanzo  v.  Jarvis,  1  Conn.  Comp.  Dec.  435 439 

Devine,  In  re,  Op.  Sol.  Dept.  of  L.  277 300 

V.  Brunswick  Balke  Co.,  270  111.  504,  110  N.  E.  7S0 774 

V.  Caledonian  R.  Co.,  1  F.  1105 407 

V.  Delano,  272  111.  166,  111  N.  E.  742 64 

De  Vito  V.  Atlantic  Insulated  Wire  &  Cable  Co.,  1  Conn.  Comp.  Dec.  407. .  631 

Devlin  v.  Pelaw  Main  Collieries,  5  B.  W.  C.  C.  349,  C.  A 247 

V.  Smith,  1  Cal.  I.  A.  C.  Dec.  418 702,  717 

Devney  v.  Boston,  223  Mass.  270,  111  N.  E.  788 183 

De  Voe  v.  New  York  State  Rys.,  218  N.  Y.  318,  113  N.  E.  256,  affirming 

169  App.  Div.  472,  155  N.  Y.  Supp.  12. 26,  333,  423 

Devons  v.  Anderson  &  Sons  (1911)  S.  C.  181,  C.  A 762 

Dewhurst  v.  Mather,  1  B.  W.  C.  C.  328,  C.  A 200,  585 

DeWitt  V.  Jacoby  Bros.,  1  Cal.  I.  A.  C  Dec.  170 285,  290,  540 

Dexter  v.  People's  Cloak  &  Suit  Co.,  2  Cal.  I.  A.  C.  Dec.  567 721 

De  Zeng  Standard  Co.  v.  Pressey,  86  N.  J.  Law,  469,  92  Atl.  278 597,  665 

Diaz,  In  re,  217  Mass.  36,  104  N.  E.  384,  5  N.  C.  C.  A.  609 822 

V.  Contractors'  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  150, 

affirmed  217  Mass.  36,  104  N.  E.  384 604 

Dibilio  V.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  485  617 

Dick  V.  Knoperbaum,  157  N.  Y.  Supp.  754 742 

Dickinson  v.  Barmak,  Limited    (1908)  L.  T.  Jo.  403,  C,  A 367 

Dickson  v.  Scott,  Limited,  7  B.  W.  C.  C.  1007,  C.  A 154 

Dieselman,  In  re,  Op.  Sol.  Dept.  of  L.  40i 572 

Dietz  V.  Big  Muddy  Coal  &  Iron  Co.,  263  111.  480,  105  N.  E.  289,  5  N.  C.  C. 

A.  419 64,  100,  101,  102,  111 

Dight  V.  Craster  Hall,  The,  6  B.  W.  C.  C.  674,  C.  A 753 

Diminico  v.  Fidelity  &  Casualty  Co.  of  New  York,  2  Mass.  Wk.  Comp. 

Cases,    328 781 

Dirken  v.  Great  Northern  Paper  Co.  (Dirken's  Case),  110  Me.  374,  86  Atl. 

320,  Ann.  Cas.  1914D,  396 81,  82 

Diskon  v.  Bubb,  88  N.  J.  Law,  513,  90  Atl.  660 647,  815,  843 

Dissosway  v.  Jallade,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  13 43,  119 

Dittmar  v.  Wilson,  Sons  &  Co.,  2  B.  W.  C.  C.  178,  C.  A 128 

Dittmat  v.  V  393,  The,  2  B.  W.  C.  C.  178,  C.  A 128 

Dixon  V.  Ambient,  The,  5  B.  W.  C.  C.  428,  C.  A 473 

Dobbies  v.  Egypt  &  Levant  S.  S.  Co.,  2  B.  W.  C.  C.  348,  Ct.  of  Sess 257 

Dobby  V.  Wilson,  Pease  &  Co.,  2  B.  W.  C.  C.  370,  C.  A 604 

Dobson  V.  United  Collieries,  8  F.  241,  246,  Ct.  of  Sess 559,  564 

Dodge  V.  Boston  &  Providence  R.  R.,  154  Mass.  299,  28  N.  E.  243,  13  L.  R. 

A.    318 235 


Doggett  CASES  CITED  902 


Doggett  V.  Waterloo  Taxicab  Co.,  3  B.  W.  C.  C.  371,  O.  A 179 

Doherty,  In  re,  222  Mass.  98,  109  N.  E.  SS7 464,  475,  805,  820,  822 

Dolan  V.  Judson,  1  Conn.  Comp.  Dec.  362 137 

V.  Massachusetts  Employes  Ins.  Ass'n.,  2  Mass.  Wk.  Comp.  Cases,  259  544 

Dolbeer  &  Carson  Lumber  Co.  v.  Watson,  1  Gal.  I.  A.  C.  Dee.  654 228 

Dominick  v.  Brainerd,  Shaler  &  Hall  Quarry  Co.,  1  Conn.  Comp.  Dec.  655  610 

Donahue  v,  R.  A.  Sherman's  Sons  Co.  (R.  I.)  98  Atl.  109 753,  840 

Donaldson  v.  Atchison,  T.  &  S.  F.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  699 '.  52 

Donnaehie  v.  United  Collieries  (1910)  S.  C.  503,  Ct.  of  Sess 560 

Donnelly  v.  Baird  &  Co.,  45  Scottish  Law  Rep.  394,  1  B.  W.  C.  O.  95 

523,  524,  525,  530 
Donovan,  In  re  (Donovan's  Case)  217  Mass.  76,  79,  104  N.  E.  431,  Ann.  Cas. 

1915C,  778,  4  N.  C.  C.  A.  549 376,  821,  822 

V.  Holy  Cross  Cemetery,  1  Cal.  I.  A.  C.  Dec.  510 640 

Dooley   v.  Sullivan,  218  Mass.  597,  106  N.  E.  604 109 

Dorrance  v.  New  England  Pin  Co.,  1  Conn.  Comp.  Dec.  24 323,  348,  415,  431 

Dothie  v.  MacAndrew  &  Co.,  1  B.  W.  C.  C.  308,  C.  A 576 

Dotzauer  v.  Strand  Palace  Hotel,  3  B.  W.  C.  C.  387,  C.  A 307,  462 

Dougal  V.  Westbrook,  6  B.  W.  C.  C.  705,  C.  A 403 

Dougherty  v.  Wisconsin,  Bui,  Wis.  Indus.  Com.  vol.  1,  p.  99 645 

Doughtou  V.  Hickman,  Limited,  6  B.  W,  C.  C.  77,  C.  A 306 

Douglas  V.  J.  &  J.  Drug  Co.,  2  Cal.  I.  A.  C.  Dee.  164 704 

V.  Kimbol,  1  Cal.  I.  A.  C.  Dec.  543 411,  571 

V.  United  Mineral  Mining  Co.,  2  W.  C.  C.  15,  C.  A 392,  561,  563 

Dowd  V.  Bennie  &  Son,  40  S.  L.  R.  239 523 

V.  Bennie  &  Son,  5  F.  268,  Ct.  of  Sess 530 

Dowling  V.  New  York  Cent.  &  H.  R.  R.  Co.,  The  Bulletin,  N.  Y.  vol.  1, 

No.  10,  p.  17 369,  567 

Downer  v.  Lasky  Feature  Play  Co.,  2  Cal.  I.  A.  C.  Dec.  316 548,  554 

Doyle  V.  Cork  Steam  Packet  Co.,  5  B.  W.  C.  C.  350,  C.  A 663 

Dragovich  v.  Iroquois  Iron  Co.,  269  111.  478,  109  N.  E.  999,  10  N.  C.  C. 

A.  475 24,  64,  406,  416,  464 

Drapeau  v.  Stoddard,  1  Conn.  Comp.  Dec.  590 633 

Draper  v.  Lore  &  Co.,  1  Cal.  I.  A.  C.  Dec.  132 484 

Dray,  In  re.  Op.  Sol.  Dept.  of  D.  540 651 

Driscoll  V.  Cushman's  Exp.  Co.,  Mass.  Wk.  Comp.  Cases  (July  1,  1912- 

Juue  20,  1913)  pp.  125,  130 461 

Drolshagen  v.  Milwaukee  Pattern  &  Mfg.  Co.,  Wis.  Indus.  Com.  1914^-15, 

p.  25 314 

Dube  V.  Clayton  Bros.,  1  Conn.  Comp.  Dec.  441 311,  756 

Duberly  v.  Mace,  6  B.  W.  C.  C.  82,  C.  A 576,  577 

Ducy  V.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk,  Comp,  Cases,  513. . 

684,  698 


903  CASES  CITED  Eke 

Page 

Duden  v.  City  &  County  of  San  Francisco,  2  Cal.  I.  A.  C.  Dec.  10G7 348 

Duer,  In  re,  Op.  Sol.  Dept.  of  L.  507 573 

Duffy,  In  re,  Op.  Sol.  Dept.  of  L.  594 250 

Dufrene  v.  Risdon  Tool  &  Machine  Co.,  1  Conn.  Comp.  Dec.  411 205 

Duke  V.  E.  Horton  &  Son,  1  Conn.  Comp.  Dec.  673 454 

Dundee  Steam  Trawling  Co.  v.  Robb,  48  S.  L.  R.  13 479 

Dunham  v.  Clare,  2  K.  B.  292,  O.  A 494,  505,  508 

V.  Phelan  &  Sullivan,  The  Bulletin,  N.  Y.,  vol.  1,  No.  9,  p.  30 720 

Dunnigan  v.  Cavan  &  Lind,  4  B.  W.  C.  C.   386,  Ct.  of  Sess 530 

V.  Cavan  &  Lind  (1911)  S.  C.  579,  Ct.  of  Sess 507 

Dupreis  v.  Holt  Lumber  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  32 496 

Duprey  v.  Maryland  Casualty  Co.,  219  Mass.  189,  106  N.  E.  686 

599,  608,  617,  802,  837 

Durham  v.  Brown  Bros.  Co.,  1  F.  278,  Ct.  of  Sess 388,  389 

Durney,  In  re,  222  Mass.  461,  111  N.  E.  166 584 

Durrant  v.  Smith  &  Co.,  7  B.  W.  C.  C.  415,  C.  A 467 

Dutton  V.  Priest  (Dutton's  Case)   67  Fla.  370,  65  South.  282 62,  80 

Dyer  v.  James  Black  Masonry  &  Contracting,  Co.,  Mich.  Wk.  Comp.  Cases 

(1916)  52,  158  N.  W.  959 201,  215 

Dyke  v.  Conlon,  2  Cal.  I.  A.  C.  Dec.  814 740 

E 

Eagle  Chemical  Co.  v.  Nowak,  161  Wis.  446,  154  N.  W.  636 823 

Earnshaw  v.  Lancashire  &  Y.  R.  Co.,  115  L.  T.  Jour.  89,  5  B.  W.  C.  C.  28. .  384 
Eastman  v.  State  Compensation  Insurance  Fund,  2  Cal.  I.  A.  C.  Dec.  390. . 

184,  423 

Eaton,  In  re,  Op.  Sol.  Dept.  of  D.  183 345 

V.  Evans,  5  B.  W.  C.  C.  82,  C.  A 756 

Eaves  v.  Blaenclydach  Colliery  Co.,  2  B.  W.  C.  C.  329,  C.  A 293,  294,  603 

Ebner,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.,  p.  47 509 

Eby  v.  Weaver,  2  Cal.  I.  A.  C.  Dec.  715 706 

Eccles  V.  Scovill  Mfg.  Co.,  1  Conn.  Comp.  Dec,  241 531 

Edgley  v.  Firth,  1  Cal.  I.  A.  C.  Dec.  651 346,  386 

Edmonds,  In  re.  Op.  Sol.  Dept.  of  L.  259 299 

Edmunds  v.  Peterston,  The,  5  B.  W.  C.  0.  157,  0.  A 392 

Edwards  v.  International  Coal  Co.,  5  W.  C.  O.  21 400 

v.  Wingham  Agricultural  Implements  Co.,  6  B.  W.  C.  C.  511,  C.  A 378 

Edwardson  v.  Jarvis  Lighterage  Co.,  168  App.  Div.  368,  153  N.  Y.  Supp. 

391 34,  357,  475 

Egerton  v.  Moore,  5  B.  W.  C.  C.  284,  C.  A 758 

Ehrhart  v.  Industrial  Ace.  Commission  of  California   (Cal.)  158  Pac.  193. .  768 

Bide  V.  Horn,  Bulletin  No.  1,  111.,  p.  44 693 

Eke  V.  Hart-Dyke,  3  B.  W.  C.  C.  482,  O.  A 541,  751 


Eldorado  CASES  CITED  904 

Page 
Eldorado  Coal  &  Mining  Co.  v.  Mariotti,  131  C.  C.  A.  359,  215  F.  51,  7 

N.  O.  C.  A.  966 92,  734 

Eldredge  v.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk.  Comp.  Cases, 

639 628 

Eldridge  v.  Endicott-Johnson  &  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  8,  p.  8  493 

Ellett,  In  re.  Op.  Sol.  Dept.  of  L.  112 187 

Elliott  V.  Rex,  6  W.  C.  C.  27 427 

Ellis  V.  Ellis  &  Co.,  7  W.  C.  C.  97,  C.  A 180 

V.  Fairfield  Shipbuilding  &  Engineering  Co.,  6  B.  W.  C.  C.  308,  Ct. 

of    Sess 752 

V.  U.  S.,  206  U.  S.  246,  27  Sup.  Ct.  600,  51  L.  Ed.  1047,  11  Ann.  Cas. 

589 183 

Ellmore,  In  re,  Op.  Sol.  Dept.  of  L.  245 299 

Ely  V.  Maryland  Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  335 651,  706,  799 

V.  M.  S.  Brooks  &  Sons,  1  Conn.  Comp.  Dec.  390 435,  443 

Emerson  v.  Massachusetts  Employes'  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cases, 

181    222 

Emmert  v.  Trustees  of  Preston  School  of  Industry,  1  Cal.  I.  A.  C.  Dec.  17. .  283 
Employers'  Assur.  Corp.  v.  California  Industrial  Ace.  Commission,  2  Cal. 

I.  A.  C.  Dec.  452,  453,  170  Cal.  800,  151  Pac.  423,  424 314,  775,  826,  828 

Employers'  Liability  Assur.  Corp.,  In  re,  215  Mass.  497,  102  N.  E.  697, 

L.  R.  A.  1916A,  306,  4  N.  C.  C.  A.  522 29,  267,  321,  322,  324,  326,  426,  432 

Encinas,  In  re.  Op.  Sol.  Dept.  of  L.  601 249 

Englebretson  v.  Indus.  Ace.  Com.,  2  Cal.  I.  A.  C.  Dec.  449 314,  775 

V.  Indus.  Ace.  Com.,  170  Cal.  793,  151  Pac.  421,  10  N.  C.  C.  A.  545 

310,  772,  774,  776,  826,  834 

English  V.  Cain,  2  Cal.  I.  A.  C.  Dec.  399 142,  204,  206,  207,  570,  809 

Ennis  v.  Hanna  D.  Co.,  148  Wis.  655,  134  N.  W.  1051 825 

Erickson,  In  re.  Op.  Sol.  Dept.  of  L.  (1915)  774 811 

V.  Empire  Laundry  Co.,  1  Cal.  I.  A.  C.  Dec.  612 419 

V.  Massachusetts  Employes'  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cases,  149 

(decision  of  Com.  of  Arb.) 543,  544 

V.  Peppard  &  Burrill,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  27 214 

Erie  R.  Co.  v.  Williams,  233  U.  S.  685,  34  Sup.  Ct.  761,  58  L.  Ed.  1155,  51 

L.  R.  A.  (N.  S.)  1097 45 

Espy  V.  Crossman,  2  Cal.  I.  A.  C.  Dec.  328 381,  383,  412 

Estell  V.  Los  Angeles  Ice  &  Cold  Storage  Co.,  1  Cal.  I.  A.  C.  Dec.  501. .  .809,  810 

Estorga,  In  re.  Op.  Sol.  Dept.  of  L.  506 250 

Etherington  &  Lancashire  &  Yorkshire  Ace.  Ins.  Co.,  In  re,  1  K.  B.  591, 

C.    A 492 

Etienne,  In  re.  Op.  Sol.  Dept.  of  L.  163 345 

Euman  v.  Dalziel  &  Co.,  6  B.  W.  C.  C.  900,  Ct.  of  Sess 482 

Evanhoff  v.  State  Industrial  Ace.  Commission,  78  Or.  503,  154  Pac.  106 

24,  63,  66,  67,  70,  73,  94,  97 


905  CASES  CITED  reehan 

Page 

Evans,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.,  p.  55 251 

V.  Cory  Bros.  &  Co.,  5  B.  W.  C.  C.  272,  C.  A 601 

V.  Dood,  5  B.  W.  C.  C.  305,  C.  A 542 

V.  Holloway,  7  B.  W.  C.  C.  248,  C.  A 385 

V.  Pacific  Coast  Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  140 707 

V.  Penwyllt  Dinas  Silica  Brick  Co.,  4  W.  C.  C.  101 214 

Evenson,  In  re,  Op.  Sol.  Dept.  of  L.  187 345 

Everitt  v.  Eastaff  &  Co.,  6  B.  W.  C.  C.  184,  C.  A 401 

Eydmann  v.  Premier  Accumulator  Co.,  8  B,  W.  C.  C.  121,  C.  A 757 

EzykowsM  v.  F.  B.  Dasbiel  Co.,  1  Conn.  Comp.  Dec.  236 692 

F 

Fabbian  v,  C.  W.  Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  305 240,  655,790 

Fahey,  In  re,  Op.  Sol.  Dept.  of  L.  283 365 

Fair,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  83 299 

Faircbild  v.  Pennsylvania  R.  Co.,  170  App.  Div.  135,  155  N,  T.  Supp.  751 

46,  825 
Falconer  v.  London  &  Glasgow  Engineering  &  Iron  Shipbuilding  Co.,  3  F. 

564,  Ct.  of  Sess 419,  443 

Fannah  v.  Midland  Great  Western  Ry.,  4  B.  W.  C.  C.  440,  C.  A 470 

Fariuholt  v.  Luckhard,  90  Va.  936,  21  S.  E.  817,  44  Am.  St.  Rep.  953 186 

Farley  v.  Koch,  2  Cal.  I.  A.  C.  Dec.  986 219 

Farmer  v.  Barber,  3  Cal.  I.  A.  C.  Dec.  21 844 

V.  Stafford,  Allen  &  Sons,  4  B.  W.  C.  C.  223,  C.  A 311 

Farrell  v.  Casualty  Co.  of  America,  2  Mass.  Wk.  Comp.  Cases,  423 347,411 

Farris  v.  Potomac  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  487 133 

Farrish  v.  Nugent,  1  Cal.  I.  A.  C.  Dec.  98 486 

Fasulo  V.  Andrew  B.  flendryx  Co.,  1  Conn.  Comp.  Dec.  29 610 

Farero  v.  Board  of  Public  Library  Trustees,  1  Cal.  I.  A.  C.  Dec.  225 519 

Favro  v.  Superior  Coal  Co.,  188  111.  App.  203 105,  111 

Feder  v.  Iowa  State  Traveling  Men's  Ass'n,  107  Iowa,  538,  78  N.  W.  252, 

43  L.  R.  A.  693,  70  Am.  St.  Rep.  212 283 

Federal  Act,  Op.  Sol.  Dept.  of  L.  p.  779 341 

p.  781  782 

p.  783  250 

p.  784  248 

p.  785  730 

p.  786  647 

p.  794  648 

p.  795  648 

Federal  Rubber  Mfg.  Co.  v.  Havolic,  162  Wis.  341,  156  N.  W.  143 

25,  285,  325,  409,  417,  418,  443 
Feehan  v.  Tevis,  2  Cal.  I.  A.  C.  Dec,  434 194,  195,206 


Feinman  CASES  CITED  906 

Page 

Feinman  v.  Albert  Mfg.  Co.,  170  App.  Div.  147,  155  N.  Y.  Supp.  909 631 

Felsen  v.  Atchison,  T.  &  S.  F.  R.  Co.,  3  Cal.  I.  A.  C.  Dec.  11 59S 

Feltis,  In  re,  Op.  Sol.  Dept.  of  L.  123 342 

Fenn  v.  Miller,  2  W.  C.  C.  55,  C.  A 129 

Fennah  v.  Midland  Great  Western  Ry.,  4  B.  W.  C.  C.  440,  C.  A 416,  461 

Fensler  v.  Associated  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  447 425 

Fenton,  In  re,  Op.  Sol.  Dept.  of  L.  127 342 

v.  J.  Thorley  &  Co.  (1903)  A.  C.  443,  19  L.  T.  R.  684 279,  288 

V.  Thorley  &  Co.,  5  W.  C.  C.  1,  6,  9,  H.  L 276,  278,  288,  295,  315 

Fenz,  In  re,  Op.  Sol.  Dept.  of  L.  116 187 

Ferguerson  v.  Royal  Indemnity  Co.,  1  Cal.  I.  A.  C.  Dec.  11 366,  411 

Fergus  v.  Russel,  270  111.  304,  110  N.  E.  130,  Ann.  Cas.  1916B,  1120 &4 

Ferguson  v.  Barclay  Sons  &  Co.,  5  F.  105,  Ct.  of  Sess 129 

Fernandez,  In  re,  Op.  Sol.  Dept.  of  L.  187 344,  345 

Ferranti  v.  Kennedy,  1  Conn.  Comp.  Dec.  196 180 

Fidelity  &  Deposit  Co.  of  Maryland  v.  Industrial  Ace.  Commission,  2  Cal. 

I.  A.  C.  Dec.  973,  171  Cal.  728,  154  Pac.  834 514,  551,  560,  826 

Field  V.  New  York,  N.  H.  &  H,  R,  R.  Co.,  1  Conn.  Comp.  Dee.  199 580 

Fierro's  Case,  In  re,  223  Mass.  378,  111  N.  E.  957 

259,  263,  270,  766,  772,  805,  822 

Fife  Coal  Co.  t.  Wallace,  2  B.  W.  C.  C.  264,  Ct.  of  Sess 270 

Filer  &  S.  Co.,  In  re,  146  Wis.  629,  132  N.  W.  584 57 

Filler,  In  re,  Op.  Sol.  Dept.  of  L.  (1915)  663 770 

Filliger  v.  Allen,  1  Conn.  Comp.  Dec.  35 247,  566 

Findley  v.  Judah  Co.,  2  Cal.  I.  A.  C.  Dec.  760 374 

Fineblum  v.  Singer  Sewing  Mach.  Co.,  1  Conn.  Comp.  Dec.  128 168 

Finlay  v.  Tullamore  Guardians,  7  B,  W.  C.  C.  973,  C.  A 124,  541 

Finley  v.  San  Francisco  Stevedoring  Co.,  2  Cal.  I.  A.  C.  Dec.  174 293,  681 

Finn  v.  Detroit,  Mt.  Clemens  &  Marine  City  Ry.,  Mich.  Wk.  Comp.  Cases 

(1916)    222 262 

Fiocea  v.  Dillon,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  13 352 

Fiorio  v.  Ferrie,  1  Conn.  Comp.  Dec.  459 123,  728,  803 

First  Annual  Reports  Industrial  Accident  Commission  will  be  found  in 

this  table  under  "Oregon." 
First  Nat.  Bank  v.  Industrial  Commission,  161  Wis.  526,  154  N.  W.  847. . . 

772,  780,  823,829 

Fischer  v.  Union  Ice  Co.,  2  Cal.  I.  A.  C.  Dec.  72 303,  621 

Fisco  V.  Hazel  Gold  Mining  Co.,  1  Cal.  I.  A.  C.  Dec.  30 555 

Fise  V.  Andrew  B.  Hendryx  Co.,  1  Conn.  Comp.  Dec.  29 610 

Fisher,  In  re,  220  Mass.  581,  108  N.  E.  361 290,  830 

V.  Dunshee,  2  Cal.  I.  A.  C.  Dec.  849 218 

Fishering  v.  Daly  Bros.,  2  Cal.  I.  A.  C.  Dec.  940 435 

V.  Fillsbury  (Cal.)  158  Pac.  215 442 

Fitt  V.  Central  Illinois  Public  Service  Co.,  Bulletin  No.  1,  111.,  p.  129. .  .100,  725 


907  CASES  CITED  For.te 

Page 

Fitzgerald  v.  Clarke  &  Son,  1  B.  W.  C.  C.  197,  C.  A 443 

V.  Lozier  Motor  Co.,  187  Mich.  6G0,  154  N.  W.  07 466,  467,  773,829 

V.  Manchester  Liners    (1910)  A.  C.  498,  500 347 

V.  W.  G.  Clarke  &  Son,  2  K.  B.  796,  77  L.  J.  K.  B.  1018. .  .322,  323,  324,  408 

Fitzpatrick,  In  re.  Op.  Sol.  Dept.  of  L 306 

V.  Hindley  Field  Colliery  Co.,  4  W.  C.  C.  7,  C.  A 374 

Flaherty  v.  Locomobile  Co.  of  America,  1  Conn.  Comp.  Dec.  354 486 

Flanagan  v,  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases, 

441     698 

Flannery  v.  O'Brien,  1  Conn.  Comp.  Dec.  264 797 

Flash  V.  Pattridge  Metal  Equipment  Co.,  Bulletin  No.  1,  111.  p.  46 106 

Fleet  V.  Johnson  &  Sons,  6  B.  W.  C.  C.  60,  C.  A 468 

v,  Johnson  &  Sons,  6  B.  W.  C.  C.  633 504 

Fleming  v.  Massachusetts  Employes  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cases, 

411     306 

Flemmings,  In  re,  Op.  Sol.  Dept.  of  L.  225 353 

Fletcher,  In  re.  Op.  Sol.  Dept.  of  L.  744 358 

V.  Duchess,  The  (1911)  A.  C.  671 469,  474,  779 

V.  Duchess,  The,  3  B.  W.  C.  C.  239,  C.  A 449 

V.  Duchess,  The,  4  B.  W.  C.  C.  317,  H.  L 449 

Flint  V.  Coronado  Beach  Co.,  2  Cal.  I.  A.  C.  Dec.  395 353,  435 

Floccher  v.  Fidelity  &  Deposit  Co.  of  Maryland,  221  Mass.  54,  108  N.  E. 

1032    526,   625,  630 

Flora,  In  re.  Op.  Sol.  Dept.  of  L.  226 291 

Flotat  V.  Union  Hardware  Co.,  1  Conn.  Comp.  Dec.  5 305,  727 

Fly  V,  San  Diego  Transfer  Co.,  2  Cal.  I.  A.  C.  Dec.  714 702,  717 

Flynn  v.  Burgess  (1914)  W.  C.  &  Ins.  Rep.  238,  C.  A 663 

Fobes  V.  Killeen,  Bulletin  No.  1,  111.,  p.  68 316 

Fogarty  v.  National  Biscuit  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  9.  .312,  333 

Fogg,  In  re,  Op.  Sol.  Dept.  of  L.  509 651 

Foley  V.  A.  T.  Demarest  &  Co.,  1  Conn.  Comp.  Dec.  661 701,  779 

V.  Detroit  United  Ry.  (Mich.)  157  N.  W.  45 581,  805 

Fonseca  v.  Cunard  S.  S.  Co.,  153  Mass.  553,  555,  27  N.  E.  665,  12  L.  R.  A. 

340,  25  Am.  St.  Rep.  660 159 

Fontes  v.  Scott's  Exp.  Co.,  2  Cal.  I.  A.  C.  Dec.  829 725,  726 

Forbes  v.  Brown,  1  Conn.  Comp.  Dec.  202 563 

V.  Humboldt  County,  2  Cal.  I.  A.  C.  Dec.  887 132,  720 

Ford  Y.  Gaiety  Theatre  Co.,  7  B.  W.  O.  C.  197,  C.  A 757 

Forde,  In  re.  Op.  Sol.  Dept.  of  L.  309 365 

Foreman  Bros.  Banking  Co.  v.  George  Lanz  &  Co.,  Bulletin  No.  1,  111.,  p.  81  396 

Forgues  v.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  1038 701 

Forrest  v.  Roper  Furniture  Co.,  267  111.  331,  108  N.  E.  328 735 

V.  Roper  Furniture  Co.,  187  lU.  App.  504 304 

Forte  V.  Waterbury  Mfg.  Co.,  1  Conn.  Comp.  Dec.  685 700 


Fortino  CASES  CITED  90S 

Page 
Fortino  v.  Merchants*  Dispatch  Transp.  Co.  (Sup.)  156  N.  Y.  Supp.  262 .. .  632 
Foster  v.  Shepherd,  258  111.  164,  101  N.  E.  411,  45  L.  R.  A.  (N.  S.)  167, 

Ann.   Cas.   1914B,  572 774 

Foth  V.  Macomber  &  Whyte  Rope  Co.,  161  Wis.  549,  154  N.  W.  369,  11 

N.  C.  0.  A.  599 27, 190 

Foust  V.  Hartford  Builders'  Finish  Co.,  1  Conn.  Comp.  Dec.  512 481 

Fowler,  In  re,  Op.  Sol.  Dept.  of  L.  180 345 

V.  Risedorph  Bottling  Co.,  The  Bulletin,  N.  T.,  vol.  1,  Ko.  7,  p.  7 495 

V.  Zellerbach-Levison  Co.,  1  Cal.  I.  A.  C.  Dec.  609 576,  66S 

Fox  V.  Masons'  Fraternal  Ace.  Ass'n,  96  Wis.  390,  394,  395,  71  N.  W.  363. .     72 

V.  Union  Oil  Co.  of  Cal.,  2  Cal.  I.  A.  C.  Dee.  4J4 765 

Frabbie  v.  Freeburg,  1  Conn.  Comp.  Dec.  614 486 

Fralin  v.  United  States  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  758 512 

Frandsen  v.  J.  Llewellyn  Co.,  8  Cal.  I.  A.  C.  Dec.  23 144,  767 

Frankfort  General  Ins.  Co.  v.  Pillsbury  (Cal.)  159  Pac.  150 

587,  598,  613,  792,  800,  824.834 

Fraser  v.  Great  North  of  Scotland  R.  Co.,  3  F.  908,  Ct.  of  Sess 762 

Frazer  v.  Riddell  &  Co.,  7  B.  W.  C.  C.  841,  Ct.  of  Sess 460 

Freeh  v.  San  Joaquin  Light  &  Power  Corp.,  2  Cal.  I.  A.  C.  Dec.  948 303 

Fredenburg  v.  Empire  United  Rys.,  168  App.  Div.  618,  154  N.  Y.  Supp.  351 

593,  626,  633 

Fred  E.  Sanders,  The  (D.  C.)  208  Fed.  724 44 

Fred  E.  Sanders,  The  (D.  C.)  212  Fed.  545,  5  N.  C.  C.  A.  97 739 

Freeland  v.  Macfarlane.  Lang  &  Co.,  2  F.  832,  Ct.  of  Sess !  .601,  602 

Freeman  v.  East  Jordan  &  S.  R.  Co.  (Mich.)  1.58  N.  W.  204 115 

Freid  v.  Smith  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  117 565,  569 

French  v.  Cloverleaf  Coal  Mining  Co.,  190  111.  App.  400 105,  112 

V.  Underwood,  5  W.  C.  C.  119 225 

Frey  v.  Kerens-Donnewald  Coal  Co.,  271  111.  121,  110  N.  E.  824 467 

Friscia  v.  Drake  Bros.  Co.,  167  App.  Div.  496,  153  N.  Y.  Supp.  392 230,  231 

Frith  V.  Louisianian,  The,  5  B.  W.  C.  C.  410,  C.  A 452 

Fry  V.  Cheltenham  Corp.,  5  B.  W.  C.  C.  162,  C.  A 752,  756 

Fryer  v.  Mt.  Holly  Water  Co.,  87  N.  J.  Law,  57,  93  Atl.  679 .'  627 

Fumiciello's  Case,  219  Mass.  488,  107  N.  E.  349 471 

Furness,  Withy  &  Co.  v.  Bennett,  3  B.  W.  C.  C.  195,  C.  A 607 

Furniss  v.  Gartside  &  Co.,  3  B.  W.  C.  C.  411,  C.  A 401 

Furnival  v.  Johnson's  Iron  &  Steel  Co.,  5  B.  W.  C.  C.  43,  C.  A 471,  483 

G 

Gabriel  v.  Northwestern  Pac.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  129 614 

Gaherty  v.  International  Silver  Co.,  1  Conn.  Comp.  Dec.  403 497,  756 

Galley  v.  Peet  Bros.  Mfg.  Co.,  98  Kan.  53,  157  Pac.  431 597,  613,  763 

Galante  v.  Mammoth  Copper  Mining  Co.  of  Maine,  2  Cal.  I.  A.  C.  Dec.  732 

613,  657 


909  CASES  CITED  Getzlaff 

Page 
Galelli  v.  Magnesite  Products  Co.,  The  Bulletin,  N.  T.,  vol.  1,  No.  6,  p.  12. .  178 

Gallagher,  In  re,  219  Mass.  140,  106  N.  E.  558 263 

V.  Federal  Transfer  Co.,  1  Cal.  I.  A.  C.  Dee.  39 178 

V.  Los  Angeles,  2  Cal.  I.  A.  C.  Dec.  26 588 

V.  New  York  Cent.  R.  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  11,  p.  21..  120 

V.  Western  Steam  Nav.  Co.,  1  Cal.  I.  A.  C.  Dec.  525 39 

Gallant  v.  Gabir,  The,  6  B.  W.  C.  C.  9,  C.  A 389 

Gallup  V.  Pomona,  1  Cal.  I.  A.  C.  Dee.  242 346,  354,  362 

Gambling  v.  Haight,  59  N.  Y.  354 164,  731 

Gane  v.  Norton  Hill  Colliery  Co.,  2  B.  W.  C.  C.  42,  C.  A 374,  828 

V.  Norton  Hill  Colliery  Co.,  2  K.  B.  439 376 

Ganley  v.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk.  Comp.  Cases,  159 

357,  449 
Garbroski's  Case,  111  Iowa,  496,  82  N.  W.  959,  56  L.  R.  A.  570,  82  Am. 

St.  Rep.  524 79 

Garcia,  In  re,  Op.  Sol.  Dept.  of  L.  611 248 

V.  Atchison,  T.  &  S.  F.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  741 54 

V.  Industrial  Accident  Commission  of  California,  2  Cal.  I.  A,  C.  Dec. 

630,  171  Cal.  57,  151  P.  741 257,  268 

Gardiner  v.  State  of  California  Printing  Office,  1  Cal.  I.  A.  O.  Dec.  21 

370,  692,  697 
Gardner  v.  Horseheads  Const.  Co.,  171  App.  Div.  66,  156  N.  Y.  Supp.  899 

42,  783,  795,  827 

Gare  v.  Vorton  Hill  Colliery  Co.,  2  K.  B.  539 365 

Gariella  v.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases, 

237 543 

Garls  V.  Pekin  Cooperage  Co.,  Bulletin  No.  1,  111.,  p.  75 434 

Garratt-Callahan  Co.  v.  Industrial  Accident  Commission  of  State  of  Cali- 
fornia, 2  Cal.  I.  A.  O.  Dec.  953,  171  Cal.  334,  153  Pac.  239 821,  834 

Garsia,  In  re.  Op.  Sol.  Dept.  of  L.  166 344 

Gaskill  V.  Voorhies  Co.,  2  Cal.  I.  A.  C.  Dec.  1020 386,  424 

Gaynor,  In  re,  217  Mass.  86,  104  N.  E.  339,  L.  R.  A.  1916A,  363,  4  N.  C. 

C.  A.  502 200 

Geary  v.  Ginzler  &  Co.,  6  B.  W.  C.  C.  72,  C.  A 405 

Georgandas  v.  Panama-Pacific  International  Exposition,  2  Cal.  I.  A,  C. 

Dec.  520 198 

George  v.  Glasgow  Coal  Co.  (1909)  A.  C.  123 569 

V.  Glasgow  Coal  Co.,  2  B.  W.  C.  C.  125,  129,  H.  L 560,  564 

George  W.  Helme  Co.  v.  Middlesex  Common  Pleas,  84  N.  J.  Law,  531,  87 

Atl.  72,  4  N.  C.  C.  A.  674 633 

Gerber  v.  Central  Council  of  Stockton,  2  Cal.  I.  A.  C.  Dec.  580 14,  119,  803 

Gerow,  In  re,  Op.  Sol.  Dept.  of  L.  282 378 

Gertel  v.  H.  W.  Dorman  &  Co.,  1  Conn.  Comp.  Dec.  616 106,  168 

Getzlaff  V.  Enloe,  3  Cal.  I.  A.  C.  Dec.  18 219,  348,  351 


Giaclias  CASES  CITED  910 

Giachas  v.  Cable  Co.,  190  111.  App.  285.. 607 

Giacobbia  v.  Keruo-Domewald  Coal  Co.,  Bulletin  No.  1,  111.,  p.  196 348,  410 

Giampolini-Lombardi  Co.  v.  Employers'  Liability  Assur.  Co.,  2  Cal.  I.  A.  C. 

Dee.  1010 413,  478,  516 

Gibney  v.  Caspar  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  825 612 

Gibson  V.  Aves,  2  Cal.  I.  A.  C.  Dec.  185 466 

V.  Dunkerley  Bros.,  3  B.  W.  C.  C.  345,  C.  A 156 

Gignac  v.  Studebaker  Corp.,  186  Mich.  576,  152  N,  W.  1037 569 

Gilbert  v.  Nizam,  The,  3  B.  W.  C.  C.  455,  C.  A 450 

V.  Nizam,  The,  79  L.  J.  K.  1172 469 

Gilbey  v.  Great  Western  R.  Co.,  102  L.  T.  202,  3  B.  W.  C.  C.  135 776,  777 

Gilfillen,  In  re.  Op.  Sol.  Dept.  of  L.  654 771 

Gilkey,  In  re.  Op.  Sol.  Dept.  of  L.  288 359 

Gill,  In  re.  Op.  Sol.  Dept.  of  L.  170 345 

Gillen  v.  Ocean  Accident  &  Guarantee  Corp.,  2  Mass.  Wk.  Comp.  Cases,  812  600 

Gillen's  Case,  215  Mass.  96,  102  N.  E.  346,  L.  R.  A.  1916A,  371 599 

Gilliland  v.  Kearns,  1  Conn.  Comp.  Dec.  277 , 6S;J 

Gilmore,  Ex  parte,  3  Eng.  Com.  B.  967 266 

V.  Sexton,  1  Cal.  I.  A.  C.  Dec.  257 210 

Gilmour  v.  Dorman,  Long  &  Co.,  4  B.  W.  C.  C.  279,  C.  A 371 

Gilroy  v.  Mackie  (Leith  Distress  Committee)  2  B.  W.  C.  C.  269,  Ct.  of  Sess. 

182,  663 

Gilson,  In  re.  Op.  Sol.  Dept.  of  L.  326 399 

Ginther  v.  Knickerbocker  Co.,  1  Cal.  I.  A.  C.  Dee.  458 206,  207,  590 

Giovanellie  v.  C.  W.  Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  164 610 

Giovanni,  In  re.  Op.  Sol.  Dept.  of  L.  287 374 

Girt  en  v.  National  Zinc  Co.,  98  Kan.  405,  158  Pac.  33 654,  815 

Gitting's  Case,  2  Ohio  St.  21 72 

Glasgow  Coal  Co.  v.  Sneddon,  7  F.  485,  Ct.  of  Sess 546 

Glasgow  &  S.  W.  R.  Co.  v.  Laidlaw,  2  F.  708,  Ct.  of  Sess 551 

Glass,  In  re.  Op.  Sol.  Dept.  of  L.  393 572 

Gleisner  v.  Gross  &  Herbener,  170  App,  Div.  37,  155  N.  T.  Supp.  946 

175,  176,  330,  829 

Glidder  v.  Haliver,  The  Bulletin,  N.  Y.,  vol.  1,  No.  4,  p.  10 674 

Globe  Indemnity  Co.  v.  Terry,  2  Cal.  I.  A.  C.  Dec.  682 305 

Gloyd,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Comp.  p.  79 242,  243 

Goering  v.  Brooklyn  Mining  Co.,  2  Cal.  I.  A.  O.  Dec.  141 174,  373,  385,  558 

Golden,  In  re.  Op.  Sol.  Dept.  of  L.  68 187 

Golden,  In  re.  Op.  Sol.  Dept.  of  L.  159 344 

V.  Delta  Creamery  Co.,  2  Cal.  I.  A.  C.  Dec.  744 213,  363 

Colder  v,  Caledonian  R.  Co.,  5  F.  123,  Ct.  of  Sess 509,  511 

Goldstein  v.  Centre  Iron  Works,  167  App.  Div.  526,  153  N.  Y.  Supp.  224. . .   821 

Gomez  v.  Thomas  &  Ettinger,  2  Cal.  I.  A.  C.  Dec.  877 789 

Gonzales,  In  re,  Op.  Sol.  Dept.  of  L.  333 371 


911  CASES  CITED  Green 

Page 

Gonzales  v.  Lee  Moor  Contracting  Co.,  2  Cal.  I.  A.  C.  Dec.  302 392,  456 

Gooding  v.  Ott  (W.  Va.)  87  S.  E.  863 33,  34,  38,  99 

Goodlet  V.  Caledonian  R.  Co.,  4  F.  986 382 

Goodley,  In  re,  Op.  Sol.  Dept.  of  L.  619,  overruled,  Op.  Sol.  Dept.  of  L.  648  768 

Goodwin  v.  Libby,  McNeil  &  Libby,  2  Cal.  I.  A.  C.  Dec.  211 420 

Gordon  v.  Eby,  1  Cal.  I.  A.  C.  Dec.  16 373 

V.  Evans,  1  Cal.  I.  A.  C.  Dec.  94 589,  618,  681,  795 

V.  San  Francisco-Oakland  Terminal  Rys.,  1  Cal.  I.  A.  C.  Dec.  232 557 

Gorley  v.  Backwortb  Collieries,  7  W.  C.  C.  19 279,  542 

Gorman  v,  George  Gibson  &  Co.  (1910)  S.  C.  317,  47  S.  L.  R.  394 126 

Gorrell  v.  Battelle,  93  Kan.  370,  144  Pac.  244 107,  599,  609,  653,  674,  822 

Goslan  v.  GilUes  &  Co.  (1907)  S.  C.  68,  Ct.  of  Sess 405 

Gough  V.  Crawshay  Bros.,  1  B.  W.  C.  C.  374,  C.  A 577 

Gould,  In  re  (Gould's  Case)  215  Mass.  480,  486,  102  N.  E.  693,  Ann.  Cas. 

1914D,  372,  4  N.  C.  C.  A.  60 32,  36,  274 

Gove  V.  Royal  Indemnity  Co.,  223  Mass.  187,  111  N.  E.  702 30,  172,  591,  63S 

Grace  v.  Adams,  100  Mass.  505,  507,  97  Am.  Dec.  117,  1  Am.  Rep.  131 159 

Grady  v.  Fidelity  &  Deposit  Co.  of  Maryland,  Mass.  Wk.  Comp.  Cases,  678  579 
Graf  V.  Brooklyn  Rapid  Transit  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  9  314 

Graham,  In  re,  Op.  Sol.  Dept.  of  L.  629 769 

.     V.  Barr  &  Thornton,  6  B.  W.  C.  C.  412,  Ct.  of  Sess 363,  370,  372 

V.  Bay  Counties  Exp.  Co.,  2  Cal.  I.  A.  C.  Dec.  37 395 

V.  Daly  Bros.,  2  Cal.  I.  A.  C.  Dec.  794 422 

Grandfleld  v.  Bradley  Smith  Co.,  1  Conn.  Comp.  Dec.  479 397,  443,  563 

Grand  Lodge  I.  O.  M.  A.  v.  Wieting,  168  111.  408,  48  N.  E.  59,  61  Am.  St. 

Rep.  123 774 

Grand  Rapids  Lumber  Co.  v.  Blair  (Mich.)  157  N.  W.  29 30,     60 

Grand  Trunk  R.  Co.  of  Canada  v.  Knapp  (C.  C.  A.)  233  Fed.  950 16,  46,  742 

Grant,  In  re.  Op.  Sol.  Dept.  of  L.  94 185,  186,  187 

Grant,  In  re.  Op.  Sol.  Dept.  of  L.  660 771 

V.  Narlian,  1  Cal.  I.  A.  C.  Dec.  482 478 

Graves  v.  Connecticut  Mills  Co.,  1  Conn.  Comp.  Dec.  657 349,  414 

V.  Pacific  Coast  Casualty  Co.,  2  Cal.  I.  A.  C.  Dec.  22 145 

Gray,  In  re,  Op.  Sol.  Dept.  of  L.  118 342 

Gray,  In  re.  Op.  Sol.  Dept.  of  L.  648,  overruling  Op.  Sol.  Dept.  of  L.  619  768 

Gray's  Appeal,  80  Conn.  248,  251,  67  Atl.  891 824 

Great  Northern  R.  Co.  v.  Dawson,  7  W.  C.  O.  114,  C.  A 576 

V.  Whitehead,  4  W.  C.  C.  39,  K.  B.  D 156 

Great  Western  Power  Co.  v.  Pillsbury,  2  Cal.  I.  A.  O.  Dec.  482 493 

V.  Pillsbury,  170  Cal.  180,  149  Pac.  35,  9  N.  C.  C.  A.  466 

548,  557,  822,'  823,  826,  833 

V.  Pillsbury,  171  Cal.  69,  151  Pac.  1136,  L.  R.  A.  1916A,  281,  11  N.  C. 

C.  A.  493 , .493,  515 

Green,  In  re.  Op.  Sol.  Dept.  of  L.  237 300 

V.  Alameda  County,  2  Cal.  I.  A.  C.  Dec.  636 656 


Green  CASES   CITED 


912 


Page 

Creen  v.  Appleton  Woolen  Mills,  162  Wis.  145,  155  N.  W.  958 105 

V.  Burke,  1  Cal.  I.  A.  C.  Dec.  591 718 

Greene  v.  Caldwell,  170  Ky.  571,  186  S.  W.  648,  649 

64,  74,  78,  79,  80,  86,  97,  98,  785,  786 

V.  Greene,  2  Gray   (Mass.)  361,  364,  61  Am.  Dec.  454 289 

V.  Shaw,  5  B.  W.  C.  C.  573,  C.  A 360,  418,  423 

V.  Shawe,  2  Ir.  430,  5  B.  W.  C.  C.  530 376 

Greenock  v.  Drake,  2  Cal.  I.  A.  C.  Dec.  379 582,  583,  586,  715 

Greer  v.  Lindsay  Thompson,  Limited,  5  B.  W.  C.  C.  586,  C.  A.,  46  Ir.  L. 

T     89 391,  397 

Gregg  V.  Frankfort  General  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  581 544 

Gregory  v.  Merrill  Metallurgical  Co.,  1  Cal.  I.  A.  C.  Dec.  408 609,  711 

Gregutis  v.  Waclark  Wire  Works,  86  N.  J.  Law,  610,  92  Atl.  354 5,  61,  108, 

731,  732 

V.  Waclark  Wire  Works    (N.   J.)    91   Atl.   98 240 

Griffin   v.  A.   Roberson  &  Sons,  The  Bulletin,  N.  Y.,  vol.   1,  No.   10,  p. 

18    311,   443,  510 

Griffiths  V.  American  Bitumastic  Enamels  Co.,  The  Bulletin,  N.  Y.,  vol. 

1,  No.  7,  p.  8 43 

V.  Atkinson,  5  B.  W.  C.  C.  345,  C.  A 753 

Griga  v.  London  &  Northwestern  Ry.,  3  B.  W.  C.  C.  116 675 

Griggs  V.  Gamecock,  The,  6  B.  W.  C.  C.  15,  C.  A 400 

Grigsby  v.  Atchison,  T.  &  S.  F.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  748 53 

Grime  v.  Fletcher,  8  B.  W.  C.  C.  69,  C.  A 509 

Grinnell  v.  Wilkinson  (R.  I.)  98  Atl.  103 37,  840 

Grischuck  v.  S.  Borden  &  Co.,  1  Conn.  Corap.  Dec.  633 122 

Gron  V.  Massachusetts  Employes  Ins,  Ass'n,  2  Mass.  Wk.  Comp.  Cases, 

736 244 

Grove  v.  Michigan  Paper  Co.,  184  Mich.  449,  151  N.  W.  554 823 

Groves  v,  Burroughes  &  Watts,  4  B.  W.  C.  C.  185,  C.  A 462,  467 

Grybowski  v.  Erie  R.  Co.,  88  N.  J.  Law,  1,  95  Atl.  764 49 

Guaranty  Trust  &  Safe  Deposit  Co.  v.  Green  Cove  Springs  &  M.  R.  Co., 

139  U.  S.  137,  11  Sup.  Ct.  512,  35  L.  Ed.  116 72 

Guerin,  In  re.  Op.  Sol.  Dept.  of  L.  324 371 

Guerrieri  v.  Industrial  Ins.  Commission,  84  Wash.  266,  146  Pac.  60S,  8 

N.  C.  C.  A.  440 328,  340 

Guilfoyle  v.  Fennessy,  6  B.  W.  C.  C.  453,  C.  A 455, 

Guise  V.  Oliver,  51  Ark.  356,  11  S.  W.  515 186 

Gulf  &  B.  V.  R.  Co.  V.  Berry,  31  Tex.  Civ.  App.  408,  72  S.  W.  1049 186 

Gurney  v.  Los  Angeles  Soap  Co.,  1  Cal.  I.  A.  C.  Dec.  163 303,  471,  479 

Gutheil  V.  Consolidated  Gas  Co.  of  New  York,  94  Misc.  Rep.  690,  158  N. 

Y.   Supp.   622 338 

Guthrie  v.  Boase  Spinning  Co.,  3  F.  769 559 

Gylfe  V.  Suburban  Ice  Co.,  Bulletin  No.  1,  111.,  p.  107 331,  352,  411 


913  CASES   CITED  Harris 

H 

Page 

Haberski  v.  Peck,  Stowe  &  Wilcox  Co.,  1  Conn.  Comp.  Dec.  278 725 

Hackford  v.  Veeder  &  Brown,  The  Bulletin,  N   Y.,  vol.  1,  No.  8,  p.  10 291 

Hackney  v.  School  Board  of  City  of  New  Britain,   1  Conn,  Comp.  Dec. 

160    667 

Hade  V.  Simmons   (Minn.)  157  N.  W.  506 162 

Haffemayer  v.  United  Keanograph  Film  Mfg.  Co.,  1  Cal.  1.  A.  C.  Dec. 

620    552,  562 

Hagen  v.  Weinstein  Co.,  1  Cal.  I.  A,  C.  Dec.  615 499 

Hakala  v.  Jacobsen-Bade  Co.,  1  Cal.  I.  A.  C.  Dec.  328 293,  703,  705 

Hale  V.  Johnson,  2  Cal.  I.  A.  C.  Dec.  339 130,  213 

Haley,  In  re.  Op.  Sol.  Dept.  of  L.  255 291 

V.  Hardenburg,  1  Cal.  I.  A.  C.  Dec.  127 681 

V.  United  Collieries  (1907)  S.  C.  214,  Ct.  of  Sess 375 

Hallett  V.  Jevne  Co.,  2  Cal.  I.  A.  C.  Dec.  231 484 

Halloran,  In  re,  Op.  Sol.  Dept.  of  L.  756 306 

Halm  V.  Marshall,  2  Cal.  I.  A.  C.  Dec.  605 438,  439 

Halverhout  v.  S.  W.  .Milling  Co..  97  Kan.  484,  155  Pac.  916 653,  728,  764 

Halvorsen  v   Salvesen,  5  B.  W.  C.  C.  519,  Ct.  of  Sess 450 

Hamang's  Estate  v.  Paragon  Refining  Co.,  Bulletin  No.  1,  111.,  p.  23 457 

Hamilton,  In  re.  Op.  Sol.  Dept.  of  L.  381 596 

Hammill  v.  Pennsylvania  R.  Co.,  87  N.  J.  Law,  388,  94  Atl.  313 49,  226, 

230,  233,  722 
Hammond-Chandler  Lumber  Co.  v.  Industrial  Commission  of  Wisconsin, 

158  N.  W.  292 817,  821 

Hancock  v.  British  Westinghouse  Electric  Co.,  3  B.  W.  C.  C.  210,  C.  A 758- 

Hanley  v.  Union  Stockyards  Co.  (Neb.)  158  N.  W.  939 676,  812,  816,  838 

Hanlon  v.  Employers'  Liability  Assur.  Corp.,  2  INIass.  Wk,  Comp.  Cases, 

716    608 

Hansen  v.  Patterson  Ranch  Co.,  2  Cal.  I.  A.  C.  Dec.  769 504 

Hanson,  In  re,  Op.  Sol.  Dept.  of  L.  51 229 

V.  Commercial  Sash  Door  Co.,  Bulletin  No.  1,  111.,  p.  30 313,  567 

V.  Scott,  2  Cal.  I.  A.  C.  Dec.  730 194 

Hapelman  v.  Poole,  2  B.  W.  C.  C.  48 407 

Harbart  v.  Bryson  Estate  Co.,  1  Cal.  I.  A.  C.  Dec.  515 664 

Harbroe,  In  re,  223  Mass.  139,  111  N.  E,  709 351,  410,  415,  440,  549 

Harding,  In  re,  Op.  Sol.  Dept.  of  L.  553 250 

V.  Brynddu  Colliery  Co.,  4  B.  W.  C.  C.  269,  271,  C.  A 391,  547,  562 

Haries,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  101 488 

Harley  v.  Walsall  Wood  Colliery  Co.,  8  B.  W.  C.  C.  86,  C.  a 467 

Harpestad  v.  Alexander,  Bulletin  No.  1,  111.,  p.  14 635 

Harrington  v.  San  Diego  &  A.  R,  Co.,  2  Cal.  I.  A.  C.  Dec.  797 54 

Harris,  In  re.  Op.  Sol.  Dept.  of  L.  598 249 

Hon. Comp. — 58 


Harris 


CASES    CITED  914 


Page 

Harris  v.  Claremont  Country  Club,  2  Cal.  I.  A.  C.  Dec.  1(H7 723 

V.  Hobart  Iron  Co.,  127  Minn.  399,  149  N.  W.  662,  7  N.  C.  C.  A.  44. . . .  102 

V.  Western  Pac.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  697 52 

Harrison  v.  Whitaker  Bros.,  2  W.  C.  C.  12,  C.  A 406 

Harrod  v.  Latham,  77  Kan.  466,  95  Pac.  11 73 

Hart,  In  re.  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  IS 276,  712 

Hartford  Accident  &  Indemnity  Co.  v.  Bono,  2  Cal.  I.  A.  C.  Dec.  668.  .499,  501 
Hartnett  v.  Steen,  2  N.  Y.  St.  Dep.  Rep.  492,  affirmed  169  App.  Div.  905, 

153  N.  Y.  Supp.  1119,  and  216  N.  Y.  101,  110  N.  E.  170. 283,  433 

Hartz  V.  Hartford  Faience  Co.,  90  Conn.  539,  97  Atl.  1020 290,  396,  397, 

510,  797,  830 

Harwood  v.  Wyken  Colliery  Co.,  6  B.  W.  C.  C.  225,  O.  A 511 

Hasenstab  v.  Chicago  House  Wrecking  Co.,  Bulletin  No.  1,  111.,  p.  62 316 

Hatch  V.  I.  Newman  &  Sons,  1  Conn.  Comp.  Dec.  65 511 

Hatchman  v.  New  England  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  419. .  575 

Hattan  v.  Hattan,  1  Cal.  I.  A.  C.  Dec.  324 133,  134,  145,  788 

Haughland  v.  Howe,  1  Conn.  Comp.  Dec.  401 612 

Havey  v.  Erie  R.  Co.,  87  N.  J.  Law,  444,  95  Atl.  124 182,  233,  257,  271 

V.  Erie  R.  Co.,  88  N.  J.  Law,  684,  96  Atl.  995 232,  256,  643 

Haward  v.  Rowsell  &  Matthews,  7  B.  W.  C.  C.  552,  C.  A 468,  752 

Hawkins  v.  Bleakley  (D.  C)  220  Fed.  378,  381 63,  65,  71,  85,  92,  95,  98 

V.  Powell's  Tillery  Steam  Coal  Co.,  4  B.  W.  C.  C.  178,  O.  A 308 

Hayden  v.  Dick,  5  F.  150,  Ct.  of  Sess 212 

V.  Massachusetts   Employes'   Ins.   Ass'n,  2   Mass.   Wk.   Comp.   Cases 

198 639 

Hayes  v.  S.  J.  Thompson  &  Co.,  6  B.  W.  C.  C.  130,  C.  A 128 

V.  State  of  Missouri,  120  U.  S.  68,  7  Sup.  Ct.  350,  30  D.  Ed.  578 80 

Haynes,  In  re,  Op.  Sol.  Dept.  of  L.  (1915)  761 782 

Hay  ward  v.  Westleigh  Colliery  Co.,  7  B.  W.  C.  C.  53,  C.  A 468,  760 

V.  Westleigh  Colliery  Co.,  8  B.  W.  C.  C.  278,  H.  L 468,  760 

Head  v.  Head  Drilling  Co.,  2  Cal.  I.  A.  C.  Dec.  279 552 

V.  Head  Drilling  Co.,  2  Cal.  I.  A.  C.  Dec.  973,  171  Cal.  728,  154  Pac. 

834    514,    551,    560,  826 

Healy  v.  State,  115  Md.  377,  80  Atl.  1074 28 

Hedges  v.  Los  Angeles,  1  Cal.  I.  A.  C.  Dec.  394 548,  552,  557,  569 

Heffernan  v.  Morse  Detective  &  Patrol  Service  Co.,  2  Cal.  I.  A.  C.  Dec. 

364     "^22 

Heileman  Brewing  Co.  v.  Industrial  Commission,  161  Wis.  46,  152  N.  W. 

446    298 

V.  Schultz,  161  Wis.  46,  152  N.  Wl  446 466,  823 

V.  Shaw,  161  Wis.  443,  154  N.  W.  631 312,  313,  470 

Heitz,  In  re,  218  N.  Y.  148,  112  N.  E.  750,  affirming  (Sup.)  155  N.  Y.  Supp. 

1112 11,  17,  18,  26,  322,  330,  352,  838 

Held  V.  Lee,  2  Cal.  I.  A,  C.  Dec.  728 402 


915  CASES    CITED  Hill 

Page 

Helme  Co.  v.  Middlesex  Common  Pleas,  84  N.  J.  Law,  531,  87  Atl.  72,  4 

N.  C.  C.  A.  674 , 633 

Helms  V.  Harris  Const.  Co.,  1  Conn.  Comp.  Dec.  498 480 

Henderson  v,  Glasgow  Corp.,  2  F.  1127 383 

Hendricks  v.  Seeman  Bros.,  170  App.  Div.  133,  155  N.  Y.  Supp.  638 337, 

407,  823 

Hendrickson  v.  Public  Service  R.  Co.,  87  N.  J.  Law,  366,  94  Atl.  402 765 

Hendry  v.  Caledonian  R.  Co.,  (1907)  S.  C.  732,  Ct.  of  Sess 401 

V.  United  Collieries,  3  B.  W.  C.  C.  567,  Ct.  of  Sess 374 

Henne  v.  Hjul,  1  Cal.  I.  A.  C.  Dec.  133 522 

Henneberry  v.  Doyle,  5  B.  W.  C.  C.  580,  C.  A 405 

Henning  v.  Henning,  2  Cal.  1.  A.  C.  Dec.  733 351,  438,  550 

Henry,  In  re.  Op.  Sol.  Dept.  of  L.   (1915)  635 769 

Hensey  v.  White,  2  W.  C.  C.  1 , 288 

V.  White,  1  Q.  B.  481 278 

Henson  v.  Standard  Oil  Co.,  1  Cal.  I.  A.  C.  Dec.  383 378 

Herbert  v.  Fox  &  Co.,  8  B.  W.  C.  C.  94,  C.  A 457 

Herkey  v.  Agar  Mfg.  Co.,  90  Misc.  Rep.  457,  153  N.  Y.  Supp.  369 91,  99 

Herrick,  In  re  (Herrick's  Case)  217  Mass.  Ill,  112,  104  N.  E.  432 256, 

821,  822 

V.  Employers'  Liability  Assur.  Co.,  2  Mass.  Wk.  Comp.  Cases,  122, 

affirmed  217  Mass.  Ill,  104  N.  E.  432,  4  N.  C.  C.  A.  564.  .237,  347,  453 

V.  Wells  Fargo  &  Co.,  2  Cal.  I.  A.  C.  Dec.  85 440 

Herron,  In  re.  Op.  Sol.  Dept.  of  L.  124 342 

Hertert  v.  Wood  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  58 499 

Hetzel  V.  Wasson  Piston  Ring  Co.   (N.  J.)  98  Atl.  306 190 

Hewette  v.  Stanley  Bros.,  6  B.  W.  C.  C.  501,  C.  A 313 

Hewitt,  In  re.  Op.  Sol.  Dept.  of  L.  248 291 

V.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  286 566,  567,  5GS,  807 

Hey  V.  Pacific  Coast  Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  38 679 

Hickman,  In  re.  Op.  Sol.  Dept.  of  L.  751 306 

Hickox  V.  Beloit  Concrete  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  37 671 

Hicks,  In  re,  Op.  Sol.  Dept.  of  L.  217 318 

V.  Maxton,  124  L.  T.  Jo.  135,  1  B.  W.  C.  C.  150 32 

Higgins  V.  Campbell,  1  K.  B.  328,  affirmed  A.  C.  230 302 

V.  Hanover  &  Butler,  Rep.  Wis.  Indus.  Com.  1914r-15,  p.  37 631,  671 

Higgs  &  Hill  v.  Unicume,  6  B.  W.  C.  C.  205,  C.  A 607 

Higley  v.  Belcher,  2  Cal.  I.  A.  C.  Dec.  839 767 

Hill,  In  re.  Op.  Sol.  Dept.  of  L.  369 649 

v.  Begg,  1  B.  W.  C.  C.  320,  C.  A 200 

V.  Fuller  &  Co.,  1  Cal.  I.  A.  C.  Dec.  155 243 

V.  Guardian  Casualty  &  Guaranty  Co.,  1  Cal.  I.  A.  C.  Dec.  415.  .678,  680 

V.  Ocean  Coal  Co.,  3  B.  W.  C.  C.  29,  C.  A 605 


Hillestad  CASES   CITED  916 

Page 
Hillestad  v.  Industrial  Ins.  Commission,  80  Wash,  426,  141  Pac.  913,  Ann. 

Cas.  1916B,  789,  6  N.  C.  C.  A.  763 26,  176,  190 

Hillis  V.  Shaw,  Workmen's  Compensation  Reports  (England)  1913,  p.  744. .  442 
Hills  V.  Blair,  182  Mich.  20,  148  N.  W.  243,  7  N.  C.  C.  A.  409... 311,  320,  325, 

358,  362,  363,  368,  380,  385,  386,  464 

V.  Oval  Wood  Dish  Co.  (Mich.)  158  N.  W.  214 675 

V.  Oval  Wood  Dish  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  11 303 

V.  Pere  Marquette  R.  R.,  Op.  Mich.  Indus.  Ace.  Bd.  Bui.  No.  3,  p.  32. .  364 

Himes  v.  Powers  Inv.  Co.,  2  Cal.  I.  A.  C.  Dec.  1035 692 

Hindman   v.   Acme   Universal  Joint  Mfg.   Co.,   Mich.   Wk.   Comp.    Cases 

(1916)  56 539 

Hine,  The,  v.  Trevor,  4  Wall.  555,  567,  568,  18  L.  Ed.  451 44 

Hirschkorn  v.  Fiege  Desk  Co.,  184  Mich.  239,  150  N.  W.  851 626 

Hiserman  v.  Garside,  1  Cal.  I.  A.  C.  Dec.  516 358 

Hoare  v.  Arding  &  Hobbs,  5  B.  W.  C.  C.  36,  C.  A 751,  755 

v.  Cecil  Rhodes,  The,  5  B.  W.  C.  C.  49,  C.  A 181 

Hockley  v.  West  London  Timber  &  Joinery  Co.,  7  B.  W.  C.  C.  652,  C.  A. .  128 

Hodge  V.  Hoffman,  1  Conn.  Comp.  Dec.  322 694,  710,  715 

Hodges  V.  Swastika  Oil  Co.  (Tex.  Civ.  App.)  185  S.  W.  369 Ill,  733 

Hodgkinson  v.  Southern  Pac.  Co.,  2  Cal.  I.  A.  O.  Dec.  1039 422 

Hodgson  V.  Owners  of  West  Stanley  Colliery,  2  B.  W.  C.  C.  275,  O.  A 228 

V.  Owners  of  West  Stanley  Colliery,  3  B.  W.  C.  C.  260,  267 228,  637 

V.  Robins,  Hay,  Waters  &  Hay,  7  B.  W.  C.  C.  232,  C.  A 518,  759 

Hoenig  v.  Industrial  Commission  of  Wisconsin,  159  Wis,  646,  150  N.  W. 

996,  L.  R.  A.  1916A,  339,  8  N.  C.  C.  A.  192 320,  429,  823 

Hoey  V.  Superior  Laundry  Co.,  85  N.  J.  Law,  119,  88  Atl.  823 815 

Hoff  V.  Hackett,  148  Wis.  32,  134  N.  W.  132 266 

Hoffman,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  41 236,  268 

V.  Korn,  2  Cal.  I.  A.  C.  Dec.  166 300,  622 

Hogan,  In  re,  Op.  Sol.  Dept.  of  L.  180 345 

Hoguet  V.  Wallace,  28  N.  J.  Law,  523 231 

Holden,  In  re,  Op.  Sol.  Dept.  of  L.  268 648 

V.  Maryland  Casualty  Co.,  1  Cal.  I.  A.  C.  Dec.  14 310,  483 

Holland   v.  Fidelity  &   Deposit   Co.   of  Maryland,   2   Mass.   Wk.   Comp. 

Cases,    308    669 

Hollas  V.  Illinois  Steel  Co.,  Bulletin  No.  1,  111.,  p.  158 801,  802 

Holleron  v.  Hill,  2  Cal.  I.  A.  C.  Dec.  289 227,  238,  247,  261,  269 

Holmes  v.  Great  Northern  R.  Co.,  2  Q.  B.  409 376 

V.  Great  Northern  R.  Co.,  2  W.  C.  C.  19,  C.  A 358,  377 

V.  Japan  Beautiful  Nippon  Kyosin  Kaisha,  2  Cal.  I.  A.  C.  Dec.  894. .  213 
Holmquist  v.   Shipowners'   &  Merchants'   Tugboat  Co.,   1   Cal.   I.   A.   C. 

Dec.  224 589 

Holness  v.  Mackay  &  Davis,  1  W.  C.  C.  13,  C.  A 359 

Holt  V.  Yates  &  Thorn,  3  B.  W.  C.  C.  75,  C.  A 603 


917  CASES   CITED  Huckle 

Page 
Home  Ins.  Co.  v.  Morse,  20  Wall.  445,  22  L.  Ed.  365 72 

V.  Swigert,   104   111.   65.3 24 

Honor  v.  Painter,  4  B.  W.  C.  C.  188,  C.  A 50(> 

Hoover  v.  Engvick,  2  Cal.  I.  A.  C.  Dec.  875 205,  206,  488 

Hopkins  v.  Michigan  Sugar  Co.,  184  Mich.  87,  150  N.  W.  325,  L.  II.  A. 

1916A,  810   325,  421 

Hopwood  V.  Olive  &  Partington,  3  B.  W.  C.  C.  357,  C.  A 545 

Hora,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  173 236,  268 

Horgan  v.  Kinney,  2  Cal.  I.  A.  C.  Dec.  1006 218 

Horn,  In  re,  Op.  Sol.  Dept.  of  L.  504 573 

Horn,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  35 -371,  578 

Hornburg  v.  Morris  (Wis.)  157  N.  W.  556 166,  375 

Horsfall  v.  Jura,  The,  6  B.  W.  C.  C.  213,  C.  A 457 

Horsman  v.  Glasgow  Nav.  Co.,  3  B.  W.  C.  C.  27,  C.  A 662 

Horvat,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  155 126 

Hosegood  &  Sons  v.  Wilson,  4  B.  W.  C.  C.  30,  C.  A 663 

Hoskins  v.  Lancaster,  3  B.  W.  C.  0,  476,  C.  A 368,  370,  371,  376 

Hotchkiss  V.  Boyer,  2  Cal.  I.  A.  C.  Dec.  51 144,  690 

Hotel  Bond  Co.,  Appeal  of,  89  Conn.  143,  93  Atl.  245.  .4,  6,  12,  16,  25,  29,  85, 
92,  99,  111,  177,  225,  233,  252,  256,  796,  818,  821,  824,  827 

Hott,  In  re,  Op.  Sol.  Dept.  of  L.  89 188 

Hott,  In  re.  Op.  Sol.  Dept.  of  L.  302 373 

Hough  V.  Dayton  Mfg.  Co.,  66  Ohio  St.  427,  64  N.  E.  521 29 

Houghton   V.    Sutton   Heath   &   Lea    Green    Collieries   Co.,   3   W.   C.   C. 

173,    C.    A 575 

Houlihan  v.  Connecticut  River  R.  R.,  164  Mass.  555,  42  N.  E.  108 256 

House,  In  re.  Op.  Sol.  Dept.  of  L.  325 349 

Hovis  V.  Cudahy  Refining  Co.,  95  Kan.  505,  148  Pac.  626 84,  85 

Howard,  In  re,  218  Mass.  404,  105  N.  E.  636,  5  N.  C.  C.  A.  449 191,  408 

V.   George   Howard,    Inc.,   The  Bulletin,   N.   Y.,   Vol.   1,   No.   11,   pp. 

14,  20   172 

V.  Ludwig,  171  N.  Y.  507,  64  N.  E.  172 826 

V.  Massachusetts  Employes  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cases.  1,  af- 
firmed 218  Mass.  404,  105  N.  E.  636 203 

V.  Republic  Theater,  2  Cal.  I.  A.  C.  Dec.  (Bulletins  1915)  514 ISO,  213 

Howarth  v.  Lombard,  175  Mass.  570,  572,  56  N.  E.  888,  49  L.  R.  A.  301..     33 

Howe  V.  Fernhill  Collieries,  5  B.  W.  C.  C.  629,  C.  A 311,  313,  469 

Howell,  In  re.  Op.  Sol.  Dept.  of  L.  549 250 

V.  Bradford  &  Co.,  4  B.  W.  C.  C.  203,  C.  A 251 

V.  Bradford  Co.,  104  L.  T.  R,  N.  S.  433 682 

Howells  V.  Thomas,  120  L.  T.  Jo.  79,  C.  A 215 

V.  Vivian  &  Sons,  85  L.  T.  529,  4  W.  C.  C.  C.  106 225 

Howley,  In  re,  Op.  Sol.  Dept.  of  L.  686 357 

Huckle  V.  London  County  Council,  3  B.  W.  C.  C.  536,  Div.  Ct 157 


Hackle  CASES   CITED  918 

Page 

Huckle  V.  London  County  Council,  4  B.  W.  C.  C.  113,  C.  A 157 

Huff,  In  re,  Op.  Sol.  Dept.  of  L.  567,  568 249,  647,  648 

Huggins  V.  Guest,  Keen  &  Nettlef olds,  6  B.  W.  C.  C.  80,  C.  A 504 

Hughes,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  148 238,  257,  268 

V,  Coed  Talon  Colliery  Co.,  2  B.  W.  C.  C.  159,  C.  A 749,  760 

V.  Degen  Belting  Co.,  1  Cal.  I.  A.  C.  Dec.  203 505,  506,  720,  721 

V.  Degen  Belting  Co.,  2  Cal.  I.  A.  C.  Dec.  595 255 

V.  Postlethwaite,  4  B.  W.  C.  C.  105,  C.  A 181 

Hugo  V.  Larkins  &  Co.,  3  B.  W.  C.  C.  228,  C.  A 483 

Hulley  V.  Moosbrugger,  87  N.   J.  Law,   103,   93  Atl.   79,  8  N.  C.   C.  A. 

283    324,  570 

V.  Moosbrugger,  88  N.  J.  Law,  161,  95  Atl.  1007,  L.  R.  A.  1916C, 

1203 322,  441,  458,  839,  840 

Humber  Towing  Co.  v.  Barclay,  5  B.  W.  C.  C.  142,  O.  A 520 

Hummer  v.  Hennings,  2  Cal.  I.  A.  C.  Dec.  859 53,  423 

Humphreys,  In  re.  Op.  Sol.  Dept.  of  L.  Ill 187 

Hunnewell,  In  re,  220  Mass.  351,  107  N.  E.  934 293,  601,  603,  619, 

675,  683,  783,  805 
V.  Casualty  Co.  of  America,  2  Mass.  Wk.  Comp.  Cases,  827,  affirmed 

220  Mass.  351,  107  N.  E.  934 619 

Hunt  V.  Highley  Mining  Co.,  7  B.  W.  C.  C.  716,  C.  A 759 

V.  Highley  Mining  Co.,  (1914)  W.  C.  &  Ins.  Rep.  406 761 

V.  New  York,  N.  H.  &  H.  R.,  212  Mass.  102,  107,  98  N.  E.  787,  40  L. 

R.   A.   (N.   S.)   778 122 

Hunter  v.  Colfax  Consol.  Coal  Co.  (Iowa)  154  N.  W.  1037,  11  N.  C.  C.  A. 

886 24,  31,  58,  61,  62,  63,  65,  67,  68,  69,  70,  71,  79, 

SO,  82,  83,  84,  85,  86,  88,  93,  94,  95,  96,  97,  115 

V.  Colfax  Consol.  Coal  Co.  (Iowa)  157  N.  W.  145 67,  115,  812,  818 

V.  Mitchell,  2  Cal.  I.  A.  C.  Dec.  817 803 

V.  Tracy,  104  Minn.  378,  116  N.  W.  922 82 

Hurle,  In  re,  217  Mass.  223,  104  N.  E.  336,  L.  R.  A.  1916A,  279,  Ann. 

Cas.  1915C,  919,  4  N.  C.  C.  A.  527 274,  289,  292,  302 

V.  American   Mutual  Liability  Ins.   Co.,  2  Mass.  Wk.  Comp.  Cases, 
79,  affirmed  17  Mass.  223,  104  N.  E.  336,  L.  R.  A.  1916A,  279, 

Ann.  Cas.  1915C,  919 414 

Hurlowski  v.  American  Brass  Co.,  1  Conn.  Comp.  Dec.  6. ..  .580,  610,  711,  797 

Hurtt,  In  re.  Op.  Sol.  Dept.  of  L.  384 596 

Huscroft  V.  Bennett,  7  B.  W.  C.  C.  41,  C.  A 121 

Hussey  v.  Franey,  205  Mass.  413,  91  N.  E.  391,  137  Am.  St.  Rep.  460 122 

Husvick  V.  Simms,  1  Cal.  I.  A.  C.  Dec.  266 489 

Hutchinson  v.  Elk  River  Mill  &  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  816 358 

V.  Pacific  EJngineering  &  Construction  Co.,  2  Cal.  I.  A.  C.  Dec.  600. . 

354,  445 
Hutton,  In  re.  Op.  Sol.  Dept.  of  L.  (1915)  408,  409 572,  811 


919  CASES   CITED  Iowa 

Page 

Huyetl  V,  Pennsylvania  R.  Co.,  86  N.  J.  Law,  683,  92  Atl.  58 73,  593 

Hyndman  v.  Craig  &  Co.,  4  B.  W.  C.  C.  438,  C.  A 450 

I 

lacovazzi  v.  Coppolo,  1  Conn.  Comp.  Dec.  476 123,  804 

lanczewski  v.   Central  Locomotive   &   Car   Works,   Bulletin   No.   1,    111., 

p.    32     522 

lannace  v.  Jobson-Gifford  Co.,  1  Conn.  Comp.  Dec.  118 240 

Immel  v.  American  Beet  Sugar  Co.,  2  Cal.  I.  A.  C.  Dec.  385 583,  614,  615 

Industrial  Commission  of  Ohio  v.  Brown,  92  Ohio  St.  309,  110  N.  E.  744, 

L.  R.  A.  1916B,  1277 29,  536,  540 

Ing  V.  Higgs,  7  B.  W.  C.  C.  65,  C.  A 759 

Inniss,  In  re,  Op.  Sol.  Dept.  of  L.  81 186 

In  re.  Op.  Sol.  Dept.  of  L.  160 346 

Insurance  Co.  v.  Daggs,  172  U.  S.  557,  19  Sup.  Ct.  281,  43  L.  Ed.  552. .. .     80 

V.  Morse,  20  Wall.  445,  22  L.  Ed.  365 72 

International  Harvester  Co.  v.  Industrial  Commission,  157  Wis.  167,  147 

N.  W.  53,  Ann.  Cas.  1916B,  330,  5  N.  C.  C.  A.  822 350,  394,  598,  780, 

785,  786,  795,  796,  827 
Interstate  Telephone  &  Telegraph  Co.  v.  Public  Service  Electric  Co.,  86 

N.  J.  Law,  26,  90  Atl.  1062,  5  N.  C.  C.  A.  524 162 

Intorigne  v.  Smith  &  Cooley,  1  Conn.  Comp.  Dec.  228 610 

Iowa,  Opinions  Special  Counsel  to  Industrial  Commission  1915,  p.  3.  .90,  101, 

115,  116,  139,  172,  199,  222 

p.  5 92,   101,   192 

p.  0    208,   327 

p.  7 125,  139,  183,  208,  222 

p.  8    125.    184 

p.  9    192,    195 

p.  11    192,    193 

p.  12   193 

p.  13    119,    139 

p.  14     170 

p.  15    170,   210 

p.  16    170,    196,   197 

p.  18 170,   178,   209 

p.  20     168 

p.  22 33,  34,  39,   189 

p.  24 390,    5G5,   740 

p.  26 281,  299,  490,  537 

p.  28    412 

p.  30    264,  711 

p.  32 155,    734 


Iowa  CASES    CITED  920 

Iowa,  Opinions  Special  Counsel  to  Industrial  Commission  1915,  p.  33 156 

P-  34    647 

P-  35 13  e; 

P-  36  109,  548 

Irving,  In  re.  Op.  Sol.  Dept.  of  L.  249 277,  291 

Irwin  V.  Globe  Indemnity  Co,  of  New  York,  1  Cal.  I.  A.  C.  Dec.  547 

235,  259,  641 

Isaacson  v.  White  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  819 349,  410,  478 

Isidora  v.  Rockford  Gas  Light  &  Coke  Co.,  Bulletin  No.  1,  111.,  p.  42 '  779 

Isitt  V,  Hallway  Passengers'  Ass'n  Co.,  22  Q.  B.  D.  504 491 

Ismay,  Imrie  &  Co.  v.  WUliamson,  1  B.  W.  C.  C.  230,  232,  235,  H.  L 

277,  306,  461,  544 
Ives,  In  re.  Op.  Sol.  Dept.  of  L.  175 344 

V.  South  Buffalo  R.  Co.,  201  N.   Y.  271,  94  N.  E.  431,  34  L.  R.   A. 

(N.  S.)  162,  Ann.  Cas.  1912B,  156,  1  N.  C.  C.  A.  517.  .4,  15,  17,  IS,  19, 

65,  75,  83,  85,  98 

J 

Jackson,  In  re.  Op.  Sol.  Dept.  of  L.  320 388 

V.  Denton  Colliery  Co.,  7  B.  W.  C.  C.  92,  C.  A .*  391 

V.  Erie  R.  Co.,  86  N.  J.  Law,  550,  91  Atl.  1035,  6  N.  C.  C.  A.  9U. '.'.'.'.'. 

224   233    839 
V.  General  Steam  Fishing  Co.,  2  B.  W.  C.  C.  56,  H.  L.,  Ct.  of  Sess.. .'  384 

V.  Mammoth  Copper  Mining  Co.  of  Maine,  2  Cal.  I.  A.  C.  Dec.  915 798 

V.  Vickers,  Limited,  5  B.  W.  C.  C.  430,  C.  A 748,  758 

Jaco  V.  Los  Angeles  Gas  &  Electric  Co.,  2  Cal.  I.  A.  C.  Dec.  512 '  534 

Jacobs  V.  American  Steel  &  Wire  Co.,  1  Conn.  Comp.  Dec.  lOO 579,  619 

V.  Davis-Schonwasser  Co.,  2  Cal.  I.  A.  C.  Dec.  1013 '446 

Jacobson's  Case,  197  U.  S.  11,  25  Sup.  Ct.  358,  49  L.  Ed.  643,  3  Ann   Cas 

765    ■         ■     g3 

Jacowicz  v.  Delaware,  L.  &  W.  R.  Co.,  87  N.  J.  Law,  273,  92  Atl.  946,  Ann 

Cas.  1916B,  1222 gg2 

Jacques  v.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  478 670 

Jakubowski  v.  Brooks,  1  Conn.  Comp.  Dec.  281 234   245 

James  v.  Morley,  Carver  &  Co.,  6  B.  W.  C.  C.  680,  C.  A 603^  606 

V.  San  Pedro,  L.  A.  &  S.  L.  R.  Co..  3  Cal.  I.  A.  C.  Dec.  13 '    53 

v.  Witherbee,  Sherman  &  Co.,  2  N.  Y.  St.  Dep.  Rep.  483 127 

James  A.  Banister  Co.  v.  Kriger,  84  N.  J.  Law,  30,  85  Atl.  1027,  rehearing 

denied  89  Atl.  923 629,  634,  646,  650,  662,  805,  837,  839 

Jameson  v.  Bush,  1  CaL  I.  A.  C.  Dec.  507 497,  690,  705 

Jamieson  v.  Clark,  2  B.  W.  C.  C.  228,  Ct.  of  Sess ...,.'  iso 

V.  Fidelity  &  Deposit  Co.  of  Maryland,  2  Mass.  Wk.  Comp.  Cases,  772..  617 
Janes,  In  re,  217  Mass.  192,  104  N.  E.  556,  4  N.  C.  C.  A.  552 687,  837 


921  CASES   CITED  Jolinson 

Page 

Janes  v.  Fidelity  &  Casualty  Co.  of  New  York,  2  Mass.  Wk.  Rep.  of  Comp. 

Cases,  217,  affirmed  217  Mass.  192,  104  N.  E.  556 255 

Janiec  v.  Mitchell-Lewis  Motor  Co.,  Bill.  Wis.  Indus.  Com.,  1912-13,  p.  30. .  598 
Jankowski  v.  American  Car  &  Foundry  Co.,  Mich.  Wk.  Comp.  Cases  (1916), 

327    549 

Jansen  v,  Balboa  Amusement  Producing  Co.,  1  Cal.  I.  A.  C.  Dec.  477.  .354,  558 

Jarvis,  In  re.  Op.  Sol.  Dept.  of  L.  174 345 

Jarvis,  In  re,  Op.  Sol.  Dept.  of  L.  219 306 

Jaskulka  v.  Hartford  &  N.  Y.  Transp.  Co.,  1  Conn.  Comp.  Dec.  542 430 

Jefferson,  In  re,  Op.  Sol.  Dept.  of  L.  564 253 

Jeffrey  Mfg.  Co.  v.  Blagg,  235  U.  S.  571,  35  Sup.  Ct.  167,  59  D.  Ed.  364, 

7  N.  C.  C.  A.  570 81,  86,  88,  98 

V.  Blagg,  90  Ohio  St.  376,  108  N.  E.  465 65 

Jendrus  v.  Detroit  Steel  Products  Co.,  178  Mich.  265,  144  N.  W.  563,  L.  R. 

A.  1916A,  381,  Ann.  Cas.  1915D,  476,  4  N.  C.  C.  A.  864 524,  525,  530 

Jenkins,  In  re,  Op.  Sol.  Dept.  of  L.  334 373 

V.  Carman  Mfg.  Co.,  (Or.)  155  Pac.  703,  11  N.  C.  C.  A.  547 731,  735 

V.  Pieratt,  1  Cal.  I.  A.  C.  Dec.  114 193,  316,  691 

V.  Standard  Colliery  Co.,  5  B.  W.  C.  C.  71,  C.  A 487 

Jenkinson  v.  Harrison,  Ainslie  &  Co.,  4  B.  W.  C.  C.  194,  C.  A 404 

Jensen  v.  Southern  Pac.  Co.,  (Jensen,  Matter  of)  215  N.  Y.  514,  109  N.  E. 
600,  603,  604  L.  R.  A.  1916A,  403,  Ann.  Cas.  1916B,  276,  9  N.  C.  C.  A. 

286 45,  47,  60,  75,  87,  88,  95,  98,  163,  571,  731 

Jerman,  In  re,  Op.  Sol.  Dept.  of  L.  152 343 

Jerome  v.  Queen  City  Cycle  Co.,  163  N.  Y.  351,  57  N.  E.  485,  affirming  24 

App,  Div.  632,  48  N.  Y.  Supp.  1107 838 

Jibb  V.  Chadwick  &  Co.,  8  B.  W.  C.  C.  152,  C.  A 455 

Jillson  V.  Ross  (R.  I.)  94  Atl.  717.  .7,  11,  61,  389,  415,  814,  815,  822,  828,  839,  840 

Jiminez,  In  re.  Op.  Sol.  Dept.  of  L.  657 771 

Jobson  V.  Cory  &  Sons,  4  B.  W.  C.  C.  284,  C.  A 251 

Joeogan  v.  Hershman,  1  Conn.  Comp.  Dec.  229 761 

Johansen  v.  Union  Stockyards  Co.,  99  Neb.  328,  156  N.  W.  511 276,  478,  659 

John  V.  Albion  Coal  Co.,  4  W.  C.  C.  15,  C.  A 553 

Johns,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  172 208,  210 

Johnson,  In  re.  Op.  Sol.  Dept.  of  L.  185 345 

Johnson,  In  re.  Op.  Sol.  Dept.  of  L.  748 317 

V.  Bauer  Pottery  Co.,  1  Cal.  I.  A.  C.  Dec.  72 539 

V.  Casualty  Co.  of  America,  2  Mass.  Wk.  Comp.  Cases,  170 488 

V.  Cluett  Peabody  Co.,  2  Cal.  I.  A.  C.  Dec.  7 615,  667,  668 

V.  Engstrum  Co.,  2  Cal.  I.  A.  C.  Dec.  788 760,  767 

V.  Hammond  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  574 614 

V.  London  Guarantee  &  Accident  Co.,  2  Mass.  Wli.  Comp.  Cases,  108, 

affirmed  217  Mass.  388,  .104  N.  E.  735,  4  N.  C.  C.  A.  843 

292,  293,  414,  543,  544 


Johnson  CASES   CITED  922 

Page 
Johnson  v.  Lowe,  2  Cal.  I.  A.  C.  Dec.  568 304 

V.  Marshall,  Sons  &  Co.  (1906)  A.  C.  409,  411 548,  555 

V.  Marshall,  Sons  &  Co.,  8  W.  C.  C.  10,  H.  L 547,  559 

V.  Nelson,  128  Minn.  158,  150  N.  W.  620 35,  37,  38,  64,  101 

V.  Pacific  Surety  Co.,  1  Cal.  I.  A.  C.  Dec.  560 681,  704,  711 

V.  Southern  California  Box  Factory,  1  Cal.  I.  A.  C.  Dec.  577 505 

V.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  738 52 

V.  Spring  Glen  Farm,  1  Conn.  Comp.  Dec.  593 714 

V.  Sudden  &  Christenson,  1  Cal.  I.  A.  C.  Dec.  422 484,  485,  754,  795 

V.  Wootton,  4  B.  W.  C.  C.  258,  C.  A 762 

Johnston  v.  Monasterevan  General  Store  Co.,  2  Ir.  R.  108,  C.  A 191 

V.  Mountain  Commercial  Co.,  1  Cal.  I.  A,  O.  Dec.  100 

126,  277,  284,  373,  571 

Jolley  V.  O'Shea,  2  Cal.  I.  A.  C.  Dec.  569 720 

Jones,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  57 387 

Jones,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  187 243,  262 

Jones,  In  re.  Op.  Sol.  Dept.  of  L.  155 344 

V.  Com.,  2  Mass.  Wk.  Comp.  Cases,  721 169 

V.  Penwyllt  Dinas  Silica  Brick  Co.,  6  B.  W.  C.  C.  491,  C.  A 214 

V.  Public  Service  R.  Co.,  86  N.  J.  Law,  &46,  92  Atl.  397 304 

V.  Ship  Alice  and  Eliza,  3  B.  W.  C.  C.  495,  C.  A 181,  384,  445 

Jorgensen  v.  Healy-Tlhbitts  Const.  Co.,  2  Cal.  I.  A.  C.  Dec.  46 500,  514 

Jost  V.  General  Electric  Co.,  1  Cal.  I.  A.  C.  Dec.  527 500,  501 

Joyce  V.  Great  Northern  R.  Co.,  100  Minn.  225,  110  N.  W.  975,  8  L.  R.  A. 

(N.  S.)   756 82 

Judd  V.  Metropolitan  Asylums  Board,  5  B.  W.  C.  C.  420,  C.  A 754 

Jule,  In  re,  Op.  Sol.  Dept  of  L.  261 542 

K 

Kagarofe  v.  Southern  California  Gas  Co.,  1  Cal.  I.  A.  C.  Dec.  43 650 

Kaiser  v.  Pinney,  1  Conn.  Comp.  Dec.  562 647 

Kalanquin  v.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  748 543 

Kalucki  v.  American  Car  &  Foundry  Co.,  Mich.  Wk.  Comp.  Cases  (1916) 

390    625,    766 

Kandalets  v.  Swift  &  Co.,  Bulletin  No.  1,  111.,  p.  24 598 

Kane  v.  Merry  &  Cuninghame,  4  B.  W.  C.  C.  379,  Ct.  of  Sess 456 

V.  New  Haven  Union  Co.,  1  Conn.  Comp.  Dec.  492 226,  413 

Karas  v.  Northwestern  Pacific  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  84 679 

Karemaker  v.  Corsican,  The,  4  B.  W.  C.  C.  285,  C.  A 431 

Kamy  v.  Northwestern  Malleable  Iron  Co.,  160  Wis.  316,  151  N.  W.  786. . 

110,  114 

Karras  v.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  748 53 

KarumbeUas,  In  re,  Op.  Sol.  Dept.  of  L.  614.  .* 253 


923  CASES   CITED  Keiuierson 

Page 

Kasovitch  v.  Wattis  Co.,  2  Cal.  I.  A.  C.  Dec.  (Bulletins  915)  319 168,  210 

Kavas  V.  Northern  Electric  R.  Co.,  2  Cal.  I.  A,  C.  Dec.  196 295,  501 

Keaney,  In  re,  217  Mass.  5,  104  N.  E.  438,  4  N.  C.  C.  A.  556 192,  196 

Kearney,  In  re.  Op.  Sol.  Dept.  of  L.  147 343 

Kearns  v.  New  London  Marine  Iron  Works  Co.,  1  Conn.  Comp.  Dec.  225. .  515 

Kearon  v.  Kearon,  4  B.  W.  C.  C.  435,  C.  A 4.50,  451 

Keast  V.  Santa  F§  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  694 58 

Keating,  In  re,  Op.  Sol.  Dept.  of  L.  91 188 

Keatley  v.  Shields  &  Son,  1  Cal.  I.  A.  C.  Dec.  191 845 

Keck  V.  Morehouse,  2  Cal.  I.  A.  C.  Dec.  264 485 

Keehan  v.  Milwaukee,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  24 500 

Keen  v.  Scott  Co.,  2  Cal.  I.  A.  C.  Dec.  533 403,  694 

Keenan  v.  Flemington  Coal  Co.,  5  F.  164,  Ct.  of  Sess 383 

Keene  V.  St.  Clements  Press,  7  B.  W.  C.  C.  542,  C.  A 398,  416 

Keigher  v.  General  Electric  Co.,  158  N.  Y.  Supp.  939 689 

Kelley  v.  Manley,  2  Cal.  I.  A.  C.  Dec.  318 713,  721 

Kelley's  Case,  In  re,  222  Mass.  538,  111  N.  E.  395 235,  687,  802 

Kelliher  v.  Great  Western  Power  Co.,  2  Cal.  I.  A.  C.  Dec.  378 678 

Kellogg  V.  Church  Charity  Foundation,  203  N.  Y.  191,  96  N.  E.  406,  38  L. 

R.  A.  (N.  S.)  481,  Ann.  Cas.  1913A,  883 826 

Kelly,  In  re.  Op.  Sol.  Dept.  of  L.  337 647 

Kelly,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  141 765 

V.  Auchenlea  Colliery  Co.,  4  B.  W.  C.  C.  417,  Ct.  of  Sess 300 

V.  Buchanan,  47  Ir.  L.  T.  228,  C.  A 191 

V.  Foam  Queen,  The,  3  B.  W.  C.  O.  113,  C.  A 449 

V.  Haylock  (Wis.)  157  N.  W.  1094 328 

V.  Hopkins,  2  Ir.  R.  84,  C.  A 245 

V.  Kerry  County  Council,  42  Ir.  L.  T.  23 430 

V.  Miss  Evans,  The,  6  B.  W.  C.  C.  916,  C.  A 181 

V.  Pacific  Electric  R.  Co.,  1  Cal.  I.  A.  C.  Dec.  150 294,  706,  708 

V.  Snare  &  Triest  Const.  Co.,  1  Cal.  I.  A.  C.  Dec.  471 656 

Kemp  V.  Lewis,  7  B.  W.  C.  C.  422,  C,  A 177 

Kemp  &  Dougall  v.  Darngavil  Coal  Co.  (1909)  S.  C.  1314,  Ct.  of  Sess 154 

Kempson  v.  Moss  Rose,  The,  4  B.  W.  C.  C.  101,  C.  A 662 

Kennedy,  In  re.  Op.  Sol.  Dept.  of  L.  131 342 

Kennedy  v.  American  Brass  Co.,  1  Conn.  Comp.  Dec.  406 234 

V.  David  Kaufman  &  Sons  Co.  (N.  J.  Sup.)  91  Atl.  99 221 

V.  Guardian  Casualty  &  Guaranty  Co.,  1  Cal.  I.  A.  C.  Dec.  152 2.53,  657 

V.  Kennedy  Mfg.  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  5,  p.  12.  .34,  173,  581 

V.  Utah  Const.  Co.,  2  Cal.  I.  A.  C.  Dec.  60 502 

Kennelly  v.  Stearns  Salt  &  Lumber  Co.  (Mich.)  157  N.  W.  378 

403,  444,  449,  822,  825 
Kennerson  v.  Thames  Towboat  Co.,  89  Conn.  367,  94  Atl.  372,  L.  R.  A. 
1916A,  436 7,  25,  34,  44,  48,  49,  100,  234,  238,  821 


Kenny  CASES   CITED  924 

Kenny,  In  re,  Op.  Sol.  Dept.  of  L.  57 220 

V.  Union  R.  Co.,  166  App.  Div.  497,  152  N.  Y.  Supp.  117,  8  N.  C.  C.  A. 

9S6   9,  18,  30,  100,  141,  176,  179,  835 

Kent  V.  Porter,  38  S.  L.  R.  482,  Ct.  of  Sess 129 

Kentucky  State  Journal  Co.  v.  Workmen's  Compensation  Board,  161  Ky. 
562,  170  S.  W.  1166,  L.  R.  A.  1916A,  389,  Ann.  Cas.  1916B,  1273,  affirmed 

162  Ky.  387,  172  S.  W.  674,  L.  R.  A.  1916A,  402 76,  78 

Kerr  v.  Ayr  Steam  Shipping  Co.,  6  B.  W.  C.  C.  324,  Ct.  of  Sess 473 

V.  Ayr  Steam  Shipping  Co.,  7  B.  W.  C.  C.  801,  H.  L 473 

V.  Baird  &  Co.,  4  B.  W.  C.  C.  397,  Ct.  of  Sess 404 

V.  Ritchies,  6  B.  W.  C.  C.  419,  Ct.  of  Sess 308 

Kerrigan  v.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk.  Comp.  Cases, 

360 669 

Kesler  v.  Massachusetts  Employe's  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cases, 

IGS 463 

Ketron  v.  United  Railroads  of  San  Francisco,  1  Cal.  I.  A.  C.  Dec.  528 

359,  421,  424,  426,  427 
Keyes-Davis  Co.  v.  Alderdyce,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  19    35 

Keyser  v.  Burdick  &  Co.,  4  B.  W.  C.  C.  87,  C.  A 372 

V.  Gilbert  &  Bennett  Mfg.  Co.,  1  Conn.  Comp.  Dec.  636 569 

Kid  V.  New  York  Motion  Picture  Co.,  1  Cal.  I.  A.  C.  Dec.  475 578,  582 

Kiernan  v.  Priestedt  Underpinning  Co.,  171  App.  Div.  539,  157  N.  Y.  Supp. 

900 350 

V.  Schermerhorn,  The  Bulletin,  vol.  1,  No.  8,  p.  12 837 

V.  Turlock  Irrigation  District,  2  Cal.  I.  A.  C.  Dec.  259 185,  499,  521 

Kilberg  v.  Vitch,  171  App.  Div.  89,  156  N.  Y.  Supp.  971 643 

Kilbride  v.  Pratt  &  Whitney  Co.,  1  Conn.  Comp,  Dec.  688 631,  674 

Kill  V.  Hollister,  1  Wilson,  129 72 

V.  Industrial   Commission,   160  Wis.   549,  152  N.   W.   148,   L.   R.   A. 

1916A,  14 ^ 516 

Killoy  V.  Evans,  1  Conn.  Comp.  Dec.  277 611 

King,  In  re.  Vol.  1,  No.  7  Bui.  Ohio  Indus.  Com.  p.  37 237,  371,  594 

King,  In  re  (King's  Case)  220  Mass.  290,  107  N.  E.  959 201,  231,  270,  471 

V.  Greenwood  Cemetery  Ass'n,  67  Ohio  St.  244,  65  N.  E.  882 29 

V.  Viscoloid  Co.,  219  Mass.  420,  106  N.  E.  988,  7  N.  C.  C.  A.  254 

251,  584,  730,  734 

Kinghorn  v.  Guthrie,  6  B.  W.  C.  C.  887,  Ct.  of  Sess 432 

Kingsley  v.  Donovan,  169  App.  Div.  828,  155  N.  Y.  Supp.  801.  .394,  412,  823,  825 

Kiniavsky  v.  New  Haven  Carriage  Co.,  1  Conn.  Comp.  Dec.  119 713 

Kinney,  In  re,  Op.  Sol.  Dept.  of  L.  (1915)  768 811 

Kinney's  Case,  171  Ind.  612,  85  N.  E.  954,  23  L.  R.  A.  (N.  S.)  711 79 

Kitchenham  v.  Johannesburg,  The,  4  B.  W.  C.  C.  91,  C.  A 449 

V.  Johannesburg,  The,  4  B.  W.  C.  C.  311,  312,  H.  L 320,  449 


925  CASES   CITED  Lambert 

Page 
Klawinski  v.  Lake  Shore  &  M.  S.  R.  Co.,  185  Mich.  643,  152  N.  W.  213,  L. 

R.  A.  1916A,  342 8,  428,  429,  430 

Kline,  In  re,  Op.  Sol.  Dept.  of  L.  92 188 

V.  Russell,  113  Ga.  1085,  39  S.  E.  477 186 

Knapp,  Stout  &  Co.  v.  McCafCrey,  177  U.  S.  638,  643,  648,  20  Sup.  Ct.  824, 

44  L.  Ed.  921 44 

Knight  V.  Bucknill.  6  B.  W.  C.  C.  160,  C.  A 200 

Knoll  V.  Salina,  98  Kan.  428,  157  Pac.  1167 754,  764.  765,  843 

Knopp  V.  American  Car  &  Foundry  Co.,  186  111.  App.  605,  5  N.  C.  C.  A.  798 

350,  444 

Knott  V.  Tingle,  Jacobs  &  Co.,  4  B.  W.  C.  C.  55,  C.  A 575 

Koch  V.  Oakland  Brewing  &  Malting  Co.,  1  Cal.  I.  A.  C.  Dec.  373.  .284,  383,  441 

Koether  v.  Union  Hardware  Co.,  1  Conn.  Comp.  Dec.  38 638 

Kohler  v.  Frohmann,  167  App.  Div.  533,  153  N.  Y.  Supp.  559 176,  335 

Konkel  v.  Ford  Motor  Co.,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  29 722 

Konzelski  v.  Griffin-Neuberger  Tobacco  Co.,  1  Conn.  Comp.  Dec.  50 414 

Koponen  v.  Union  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  1055 707 

Kordellos  v.  Northwestern  Pacific  R.  Co.,  1  Cal.  I.  A.  C.  Dec.  586 518,  520 

Kowalski  v.  Trostel  &  Sons,  Rep.  Wis.  Indus.  Com.  p.  17 302 

Kozlowski  V.  Illinois  Steel  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  19 502 

Kraljlvich  v.  Yellow  Aster  Min.  &  Mill.  Co.,  1  Cal.  I.  A.  C.  Dec.  554 

547,  558,  568,  612 

Kramer,  In  re,  Op.  Sol.  Dept.  of  L.  322 361 

V.  Schalke,  The  Bulletin,  N.  Y.,  vol.  1,  No.  8,  p.  8 136 

Krasmeski  v.  New  Haven  Clock  Co.,  1  Conn.  Comp.  Dec.  699 527 

Kraus  v.  Fritz  &  Son,  87  N.  J.  Law,  321,  93  Atl.  578 226 

Kreppel  v.  Boyland,  2  N.  Y.  St.  Dep.  Rep.  489 667 

Krisan  v.  American  Steel  Foundries,  Bulletin  No.  1,  111.,  p.  156 773 

Krisman  v.  Johnston  City  &  Big  Muddy  Coal  &  Mining  Co.,  190  111.  App. 

612 107 

Kruger  v.  Strehlow,  Freese  &  Peterson,  2  Cal.  I.  A.  C.  Dec.  334 657 

Krulla  V.  Casualty  Co.  of  America,  2  Mass.  Wk.  Comp.  Cases,  409 600 

Krzus  V.  Crow's  Nest  Pass  Coal  Co.,  6  B.  W.  C.  C.  271 239 

Kuehnle,  In  re.  Op.  Sol.  Dept.  of  L.  (1915)  665 771 

Kunze  v.  Detroit  Shade  Tree  Co.  (Mich.)  158  N.  W.  851 355,  426 


Lacey  v.  Mowlem  &  Co.,  7  B.  W.  C.  C.  135,  C.  A V59 

Lachuga  v.  Kataoka,  2  Cal.  I.  A.  C.  Dec.  766 218 

La  Finer  v.  Wood,  The  Bulletin,  N.  Y.,  vol.  1,  No.  7,  p.  7 482,  510 

Lagerholm,  In  re.  Op.  Sol.  Dept.  of  L.  104 188 

Lakos  V.  Pacific  Coast  Casualty  Co.,  2  Cal.  I.  A.  C.  Dec.  21 145 

Lambert,  In  re.  Op.  Sol.  Dept.  of  L.  122 342 


liombert  CASES   CITED  926 

Lambert  v.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  743 54 

Lamkin,  In  re,  Op.  Sol.  Dept.  of  L.  128 342,  343 

Lane  v.  .^olian  Co.,  1  Conn.  Comp.  Dec.  32 , 551 

V.  Herrick,  3  Cal.  I.  A.  C.  Dec.  29 118 

V.  Joyland  Co.,  2  Cal.  I.  A.  C.  Dec.  872 350 

Lannigan  v.  Lannigan,  222  Mass.  198,  110  N.  E.  285 320,  464,  465,  471,  822 

Lantis  v.  Sacramento,  2  Cal.  I.  A.  C.  Dec.  680 741 

Lantry  v.  Mede,  127  App.  Div.  557,  560,  111  N.  Y.  Supp.  833 829 

Lanzy,  In  re.  Op.  Sol.  Dept.  of  L.  373 595 

Lardle  v.  Grand  Rapids  Show  Case  Co.,  Mich,  Wk.  Comp.  Cases  (1916)  17 

624,  625 

Larke  v.  John  Hancock  Mut.  Life  Ins.  Co.,  90  Conn.  303,  97  Atl.  320 

300,  346,  347,  354,  489,  822,  824 

Larnhart  v.  Rice-Landswick  Co.,  1  Cal.  I.  A.  C.  Dec.  557 582,  617,  678 

Larsen,  In  re,  218  N.  Y.  252,  112  N.  E.  725,  affirming  169  App.  Div.  838, 

155  N.  Y.  Supp.  759 334 

V,  Paine  Drug  Co.,  169  App.  Div.  838,  155  N.  Y.  Supp.  759 335,  338 

Larson  v,  Holbrook,  McGuire  &  Cohen,  2  Cal.  I.  A.  C.  Dec.  105 590,  692 

V.  Powers,  2  Cal.  I.  A.  C.  Dec.  265 4g5 

La  Salle  v.  Whiting-Mead  Commercial  Co.,  1  Cal.  I.  A.  C.  Dec.  346 253 

Lauruska  v.  Empire  Mfg.  Co.,  271  111.  304,  111  N.  E.  82 64 

La  Veck  v.  Park,  Davis  &  Co.  (Mich.)  157  N.  W.  72 300,  309,  823 

Lavin  v.  Wells  Bros.  Co.,  272  III.  609,  112  N.  E.  271 836 

Lawrence,  In  re.  Op.  Sol.  Dept.  of  L.  178 345 

Lawson  v.. Stockton  Motorcycle  &  Supply  Co.,  2  Cal.  I.  A.  C.  Dec.  649.  .395,  552 

Lawton  v.  Los  Angeles  Transfer  Co.,  2  Cal.  I.  A.  C.  Dec.  1063 358 

Leach  v.  Hickson,  4  B.  W.  C.  C.  153,  C.  A 759 

V.  Oakley,  Street  &  Co.,  1  K.  B.  523 474 

V.  Oakley,  Street  &  Co.,  4  B.  W.  C.  C  91,  98,  C.  A 321,  387,  451 

Leary  v.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  184 465 

Ledford  v.  Caspar  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  691 255 

Ledous  V.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk.  Comp.  Cases,  493 

299,  409 

Lee  V.  Baird  &  Co.,  1  B.  W.  C.  C.  34,  Ct.  of  Sess 511,  608 

V.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk.  Comp,  Cases,  753..  543 

T.  Pacific  Coast  Steel  Co.,  3  Cal.  I.  A.  C.  Dec,  28 614 

V.  Bessie,  The,  5  B.  W.  C.  C.  55,  C.  A 247 

V.  St.  George,  The,  7  B.  W.  C.  C.  85,  C.  A 450 

V.  Stag  Line,  Limited,  5  B.  W.  C.  C.  660,  C.  A 470 

Lees  V.  Dunkerley  Bros.,  4  B.  W.  C.  C.  115,  H.  L 156 

Legge  V.  Nixon's  Nav.  Co.,  7  B.  W.  C.  C.  521,  C.  A 498 

Legget  &  Sons  v.  Burke,  4  F.  693,  Ct.  of  Sess.  (Act  of  1897) 271 

Lehmann  v.  Great  Western  Ace.  Ass'n,  42  L.  R.  A.  (N.  S.)  562 279 

V.  Ramo  Films,  Inc.,  92  Misc.  Rep.  418,  155  N.  Y.  Supp.  1032.. 43,  332,  813 


927  CASES   CITED  Lipscomb 

Page 
Leishman  v.  Dixon,  Limited,  3  B.  W.  C,  C.  560 569 

Leishman  v.  Dixon,  Limited,  3  B.  W.  C.  C.  500,  Ct.  of  Sess 553 

Leite  v.  Paraffine  Paint  Co.,  2  Cal.  I.  A.  C.  Dee.  1022 362,  449,  454 

Lemanes,  In  re.  Op.  Sol.  Dept.  of  L.  613 254 

Lemieux  v.  Contractors'  Mut.  Liability  Ins.  Co.,  223  Mass.  346,  111  N.  E. 

782 683,  762,  822 

Lentz  V.  Estabrook  Co.,  2  Cal.  I.  A.  C.  Dee.  205 38 

Leon  V.  Exposition  Wheel  Chair  Co.,  2  Cal.  I.  A.  C.  Dee.  845 219 

V.  Galeeran,  11  Wall.  185,  20  L.  Ed.  74 44 

Leonard  v.  Fremont  Hotel,  2  Cal.  I.  A.  C.  Dec.  998 383,  448,  533 

Lera  v.  Fairchild-Gilmore-Wilton  Co.,  1  Cal.  I.  A.  C.  Dec.  44 412 

Lesh  V.  Illinois  Steel  Co.  (Wis.)  157  N.  W.  539. .  .25,  27,  476,  514,  523,  524,  526 
Lester  v.  Otis  Elevator  Co.,  169  App.  Div.  613,  155  N.  Y.  Supp.  524,  af- 
firming 90  Misc.  Rep.  649,  153  N.  Y.  Supp.  1058 163,  737 

Leveroni  v.  Travelers'  Ins.  Co.   (Fumicello's  Case)  219  Mass.  488,  107  N. 

E.    349 362 

Lewandowski  v.  Crosby  Transp.  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  9 

40,  576 

Lewis  V.  Garratt-Callahan  Co.,  2  Cal.  I.  A.  C.  Dec.  952 214 

T.  Goodyear  India  Rubber  Glove  Mfg.  Co.,  1  Conn.  Comp.  Dec.  238. . .  627 

V.  Great  Western  Ry.  Co.,  3  Q.  B.  D.  195,  206,  213 548,  5^19 

V.  Heafey,  2  Cal.  I.  A.  C.  Dec.  492 270 

V.  Port  of  London  Authority,  7  B.  W.  C.  C.  577,  C.  A 495 

V.  Stanbridge,  6  B.  W.  C.  C.  568,  C.  A 215 

Lewis  &  Clark  County  v.  Industrial  Ace.  Board  (Mont.)  155  Pac.  268 

4,  8,  17,  65,  69,  73,  74 

Leyman  v.  Amalgamated  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  921 794 

Lichtenberger  v.  Straek,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  13 282 

Lightbrown  v.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases, 

243 307 

Lima  v.  Mtna.  Life  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  800 489 

Limron  v.  Blair,  181  Mich.  76,  147  N.  W.  546,  5  N.  C.  C.  A.  866 674 

Linck  V.  Millard,  4  N.  Y.  St.  Dept.  Rep.  385 277 

Lindebauer  v.  Weiner,  94  Misc.  Rep.  612,  159  N.  Y.  Supp.  987. .  .11,  17,  25,  743 

Lindh  v.  Toyland  Co.,  2  Cal.  I.  A.  C.  Dec.  646 602,  677 

Lindsay  v.  McGlashen  &  Son,  1  B.  W.  C.  C.  85,  Ct.  of  Sess 247 

Lindstrom  v.  Mutual  S.  S.  Co.  (Minn.)  156  N.  W.  669 45,  48,  49,  68,730 

Lines  v.  Pacific  Gas  &  Electric  Co.,  2  Cal.  I.  A.  C.  Dec.  837 558 

Linnane  v.  Mtna.  Brewing  Co.,  1  Conn.  Comp.  Dec.  677 280,  362 

Linsner  v.  Consumers'  Ice  &  Fuel  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  61. . .  300 

Linsteadt  v.  Louis  Sands  Salt  &  Lumber  Co.  (Mich.)  157  N.  W.  64 593,  823 

Liondale  Bleach,  Dye  &  Paint  Works  v.  Riker,  85  N.  J.  Law,  426,  89  Atl. 

929,  4  N.  C.  C.  A.  713 280,  299,  539,  541 

Lipscomb,  In  re.  Op.  Sol.  Dept.  of  L.  50 220 


Lissy  CASES   CITED  928 

Page 
Lissy,  In  re,  Op.  Sol.  Dept.  of  L.  752 317 

Little,  In  re,  Op.  Sol.  Dept.  of  L.  7S 1S8 

Lloyd  V.  Midland.  R.  Co.,  7  B.  W.  C.  C.  72,  G.  A 5S6 

V.  Power  Specialty  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  9 43,  58 

V.  Sugg  &  Co.,  2  W.  C.  C.  5,  C.  A 307,  511 

Lockwood  V.  Pacific  Gas  &  Electric  Co.,  3  Gal.  I.  A.  G.  Dec.  26 557 

Loesser  v.  East  Shore  Amusement  Co.,  1  Conn.  Gomp.  Dec.  449 440 

Logue  T.  FuUerton,  Hodgart  &  Barclay,  3  F.  1006,  1010,  Ct.  of  Sess 

392,  565,  568 

Lohrke  v.  Benicia  Iron  Works,  1  Gal.  I.  A.  C.  Dec.  261 483 

Lommen  v.  Minneapolis  Gaslight  Co.,  65  Minn.  196,  G8  N.  W.  53,  33  L.  R. 

A.  437,  60  Am.  St.  Rep.  450 63,  82 

London  &  Edinburgh  Shipping  Co.  v.  Brown,  7  F.  488,  Ct.  of  Sess 285,  406 

V.  Brown,  42  Scottish  L.  R.  357 417 

Long  V.  Bergen  County  Court  of  Common  Pleas,  84  N.  J.  Law,  117,  86 

Atl.   529 661,  837 

Lopez  V.  Fremont  Consol.  Mining  Co.,  3  Gal.  I.  A.  C.  Dec.  31 260 

Lorenzo  v.  Bigelow-Hartford  Carpet  Co.,  1  Conn.  Gomp.  Dec.  216 310 

Losh  V.  Evans  &  Co.,  5  B.  W.  G.  C.  17,  C.  A 403 

Lough  V.  Standard  Oil  Co.,  1  Gal.  I.  A.  G.  Dec.  41 604,  650 

Loustalet  v.  Metropolitan  Laundry  Co.,  1  Gal.  I.  A.  G.  Dec.  318 

281,  463,  698,  713 

Lovelady  v.  Berrie,  2  B.  W.  G.  C.  62,  G.  A 313,  468 

Lev  eland  v.  Parish  of  St.  Thomas  Church,  1  Conn.  Gomp.  Dec.  14 

173,  348,  447,742 

Lowe  V.  Myers  &  Son,  8  W.  C.  G.  22,  G.  A 764 

v.  Pearson,  1  W.  G.  G.  5,  C.  A 403 

Lowry  v.  Sheffield  Goal  Co.,  1  B.  W.  G.  G.  1,  C.  A 356 

Lowth  V.  Ibbotson,  1  W.  G.  G.  46,  G.  A 129 

Lucien  v.  Judian  Mfg.  Co.,  1  Gal.  I.  A.  C.  Dec.  509 479 

V.  Judson  Mfg.  Co.,  1  Gal.  I.  A.  G.  Dec.  59 310 

Luckwill  V.  Auchen  Steam  Shipping  Co.,  6  B.  W.  C.  C.  51,  G.  A 128 

Luke  V.  Atchison,  T.  &  S.  F.  R.  R.  Co.,  2  Gal.  I.  A.  G.  Dec.  1011 54 

Lumber  Go.  v.  Industrial  Commission  of  Wisconsin,  154  Wis.   114,   142 

N.  W.  187,  L.  R.  A.  1916A,  374,  Ann.  Gas.  1915B,  997 95 

Luttrell,  In  re,  Op.  Sol.  Dept.  of  L.  219 291 

Lutz  V.  Gladding,  McBean  &  Co.,  1  Gal.  I.  A.  G.  Dec.  8 556 

Lutze  V.  Atchison,  T.  &  S.  F.  R.  Co.,  2  Gal.  I.  A.  C.  Dec.  739 52 

Lyall  V.  Whitton,  S.  G.  1267,  Ct.  of  Sess 551 

Lydman  v.  De  Haas,  185  Mich.  128,  151  N.  W.  718,  8  N.  C.  C.  A.  649 109 

Lyman,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  182 125,  222 

Lynch  v.  Abel,  1  Conn.  Gomp.  Dec.  520 173 

V.  Baers  Express  &  Storage  Co.,  Bulletin  No.  1,  111.,  p.  79 801 

V.  Chase,  55  Kan.  367,  40  Pac.  666 73 


929  CASES   CITED  McCrae 

Page 

Lynch  v.  Great  Atlantic  &  Pacific  Tea  Co.,  1  Conn.  Comp.  Dec.  163 510 

V.  Laiisdowne,  48  Ir.  L.  T.  90,  C.  A 7GG 

V.  Pennsylvania  R.  R.  Co.,  88  N.  J.  Law,  408,  96  Atl.  395 49,  99 

V.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  591 496 

Lynn  v.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk.  Comp.  Cases,  507 

386,  446 

Lyon  V.  Windsor  (Sup.)  159  N.  Y.  Supp.  162 333,  334 

Lysons  v.  Andrew  Knowles  &  Sons,  3  W.  C.  C.  L  1,  H.  L 119 

Lyster  v.  Lyster,  111  Mass.  327 263 

Lyte,  In  re.  Op.  Sol.  Dept.  of  L.  397 572 

M 

McAdam  v.  Harvey,  2  I.  R.  511,  C.  A 128 

McAdoo  V.  Cudahy  Packing  Co.,  2  Cal.  I.  A.  C.  Dec.  512 488 

McAllan  y.  Perthshire  County  Council,  8  F.  783,  Ct.  of  Sess 402 

McAllister,  In  re,  Op.  Sol.  Dept.  of  L.  121 342 

McAllister,  In  re,  Op.  Sol.  Dept.  of  L.  680 648 

v.  National  Fireprooflng  Co.,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  107  125 

McAuliffe,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  144 202,  237 

McBride  v.  Union  Iron  Works,  1  Cal.  I.  A.  C.  Dec.  376 70S 

McCabe  v.  North  &  Sons,  6  B.  W.  C.  C.  504,  C.  A 398,  404 

McCafEerey  v.  Great  Northern  R.  Co.,  36  Ir.  L.  T.  27,  C.  A 546 

McCahill  v.  New  York  Transp.  Co.,  201  N.  Y.  221,  94  N.  E.  616,  48  L.  R.  A. 

(N.  S.)  131,  Ann.  Cas.  1912A,  961 481,  512 

McCarrell,  In  re,  Op.  Sol.  Dept.  of  L.  607 251 

McCarthy,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  190 360 

v.  McAllister  Steamboat  Co.,  94  Misc.  Rep.  692,  158  N.  Y.  Supp.  563. .     43 

V.  Norcott,  2  B.  W.  C.  C.  279,  C.  A 200 

T.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  752,  780 53 

McCay  v.  Bruce,  2  Cal.  I.  A,  C.  Dec.  54 793 

V.  Bruce,  2  Cal.  I.  A.  C.  Dec.  975,  171  Cal.  319,  153  Pac.  24 

346,  532,  719,  794 

McClennan  v.  AUith  Prouty  Co.,  Bulletin  No.  1,  111.,  p.  116 632,  725 

McComsey  v.  Simmons,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  13 3.33 

McConnell  v.  Galbraith,  7  B.  C.  W.  C.  C.  968,  C.  A 212 

McCord  V.  City  of  Liverpool,  The,  7  B.  W.  C.  C.  767,  C.  A 172 

McCormick,  In  re.  Op.  Sol.  Dept.  of  L.  186 345 

McCoy  v.  Kirkpatrick,  1  Cal.  I.  A.  C.  Dec.  599 208,  210 

V.  Michigan  Screw  Co.,  180  Mich.  454,  147  N.  W.  572.  L.  R.  A.  1910A, 

323,  5  N.  C.  C.  A.  455 311,  464,  471,  481,  488 

McCracken  v.  Missouri  Valley  Bridge  &  Iron  Co.,  96  Kan.  353,  150  Pac. 

832     653,  655 

McCrae,  In  re.  Op.  Sol.  Dept.  of  L.  375 647 

HoN.CoMP. — 59 


McCready  CASES   CITED  930 

Page 

McCready  v.  Dunlop  &  Co.,  2  F.  1027,  Ct.  of  Sess 125 

McCrae,  Limited,  v.  Renfrew,  7  B.  W.  C.  C.  898,  Ct.  of  Sess 460 

McCreery,  In  re,  Op.  Sol.  Dept.  of  L.  134 342 

McCrystle  v.  Enos,  2  Cal.  I.  A.  C.  Dec.  43. 571 

McCutcheon  v.  Marinette,  T.  &  W.  R.  Co.,  Rep.  Wis.  Indus.  Com.  1914-15, 

p.    13 178,  726 

McCullocli  V.  Maryland,  4  Wheat.  316,  4  L.  Ed.  579 52 

McDaid  v.  Steel,  4  B.  W.  C.  C.  412,  Ct.  of  Sess 456 

McDiarmid  v.  Ogilvy  Bros.,  6  B.  W.  C.  C.  878,  Ct.  of  Sess 403 

McDermott  v.  Fanning,  3  Cal.  I.  A.  C.  Dec.  14 204 

V.  Tintoretto,  The,  2  B.  W.  C.  C.  208,  C.  A 663 

V.  Tintoretto,  The,  4  B.  W.  C.  C.  123,  H.  L 663 

McDonald,  In  re.  Op.  Sol.  Dept.  of  L.  502 572 

V.  Banana,  The,  24  T.  L.  R.  887 469 

V.  Banana,  The,  1  B.  W.  C.  C.  185,  C.  A 450 

V.  Dunn,  2  Cal.  I.  A.  C.  Dec.  71 275,  323, 497 

V.  Fidelity  &  Deposit  Co.  of  Md.,  2  Mass.  Wk.  Comp.  Cases,  529 750 

V.  Globe  Laundry  Co.,  2  Cal.  I.  A.  C.  Dec.  217 785,  795 

V.  Snelling,  14  Allen  (Mass.)  290,  92  Am.  Dec.  768 507 

V.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  224 605 

V.  Wilsons  &  Clyde  Coal  Co.,  5  B.  W.  C.  C.  478,  H.  L 599,  601,  676 

McDonough,  In  re,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  152 215 

McDougal  V.  New  Richmond  R.  M.  Co.,  125  Wis.  121,  103  N.  W.  244 821 

McDougall  V.  McDougall,  4  B.  W.  C.  C.  373,  Ct.  of  Sess 181 

McFadden,  In  re,  Op.  Sol.  Dept.  of  L.  396 572 

McFarland  v.  Central  R.  Co.  of  New  Jersey,  84  N.  J.  Law,  435,  87  Atl.  144, 

47  L.  R.  A.  (N.  S.)  279,  Ann.  Cas.  1915A,  1,  4  N.  C.  C.  A.  592 643 

V.  Central  R.  Co.,  84  N.  J.  Law,  435,  87  Atl.  144 813 

McGarva  v.  Hills,  1  Conn.  Comp.  Dec.  533 417,  461,  829,  830 

McGarvey  v.  Independent  Oil  &  Grease  Co.,  156  Wis.  580,  146  N.  W.  895, 

5  N.  C.  C.  A.  803 165, 166 

McGill  V.  Dunn  County,  Bui.  Wis.  Indus.  Com.,  1912-13,  p.  33 612 

Macgillivray  v.  Northern  Counties  Institute  for  the  Blind,  4  B.  W.  C.  C. 

429,  Ct.  of  Sess.,  11  N.  C.  C.  A.  77 182 

V.  Northern  Counties  Institute  for  the  Blind,  S.  C.  897,  Ct.  of  Sess 577 

McGovern  v.  Cooper  &  Co.,  4  F.  249,  Ct.  of  Sess 129 

McGrath  v.  London  &  N.  W.  R.  Co.,  6  B.  W.  O.  C.  251,  C.  A 400 

V.  San  Jose,  2  Cal.  I.  A.  C.  Dec.  349 303 

McGroarty  v.  Brown  &  Co.,  8  F.  809,  Ct.  of  Sess 565,  567 

McGuire,  In  re,  219  U.  S.  549,  31  Sup.  Ct.  259,  55  L.  Ed.  328 66 

Mclnerney  v.  Palmer  &  McBryde,  2  Cal.  I.  A.  C.  Dec.  655 371 

Mclnnes  v,  Dunsmuir  &  Jackson,  1  B.  W.  C.  C.  226  (Ct.  of  Sess.  Scotland) 

306,  461,  518 
Mclntyre  v.  Rodger  &  Co.,  6  F.  176 433,  441 


931  CASES   CITED  McNeice 

Page 

Mack,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  120 365 

Mackay,  In  re,  Op.  Sol.  Dept.  of  L.  136 342 

In  re.  Op.  Sol.  Dept.  of  L.  176 345 

V.  American  Brass  Co.,  1  Conn.  Comp.  Dec.  526 750 

McKay  v.  City  Electric  R.  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  63 739,  740 

V.  Metropolitan  Life  Ins.  Co.,  1  Conn.  Comp.  Dec.  380 348,  426 

McKee  v.  Great  Northern  R.  Co.,  1  B.  W.  C.  C.  165,  C.  A 375 

V.  Southern  Electrical  Co.,  2  Cal.  I.  A.  C.  Dec.  805 477 

V.  Stein  &  Co.,  3  B.  W.  C.  C.  544,  Ct.  of  Sess 575,  577 

Mackenzie  v.  Coltness  Iron  Co.,  6  F.  8,  Ct.  of  Sess 371 

McKenzie  v.  Pullman  Co.,  2  Cal.  I.  A.  C.  Dec.  984 479 

McKeown  v.  McMurray,  45  Ir.  L.  T.  190,  C.  A 456 

Mackin  v,  Detroit-Timkin  Axle  Co.,  187  Mich.  8,  153  N.  W.  49 

4,  7,  16,  30,  67,  68,  70,  71,  73,  81,  88,  89,  92,  97,  98,  102,  785 

Mackinnon  v.  Miller,  2  B.  W.  C.  C.  64,  Ct.  of  Sess 120,  471 

V.  Miller,  2  B.  W.  C.  C.  70 370 

McKnight  v.  American  Can  Co.,  2  Cal.  I.  A.  C.  Dec.  427 607,  707 

McLaren  v.  Caledonian  R.  Co.,  5  B.  W.  C.  C.  492,  Ct.  of  Sess 455 

V.  Caledonian  R.  Co.  (1911)  S.  C.  1077 323 

McLauchlan  v.  Anderson,  4  B.  W.  C.  C.  p.  376 383 

V.  Anderson,  4  B.  W.  C.  C.  379 321 

McLean,  In  re,  223  Mass.  342,  111  N.  E.  783 749,  766,  780 

V.  Brooks,  2  Cal.  I.  A.  C.  Dec.  288 496 

V.  Carse  &  Holmes,  1  F.  878,  Ct.  of  Sess 760 

V.  Moss  Bay  Iron  &  Steel  Co.,  2  B.  W.  C.  C.  2S2,  C.  A 230 

V.  Shields,  2  Cal.  I.  A.  C.  Dec.  1046 373,  448 

McLeod  V.  Kirkpatrick,  3  Cal.  I.  A.  C.  Dec.  19 122 

McLoughlin  v.  Anderson,  4  B.  W.  C.  C.  376 396 

McLuckie  v.  Watson,  Limited,  6  B.  W.  C.  C.  850,  Ct.  of  Sess 478 

McMahon  v.  Interborough  Rapid  Transit  Co.,  5  N.  Y.  St.  Dept.  Rep.  374. .  293 

McManaman's  Case  (Mass.)  113  N.  E.  287 431,  839 

.McMillan  v.  Singer  Sewing  Mach.  Co.,  6  B.  W.  C.  C.  345,  Ct.  of  Sess 542 

McMurray,  In  re,  Op.  Sol.  Dept.  of  L,  571 248 

V.  J.  J.  Little  &  Ives  Co.,  3  N.  Y.  St.  Dept.  395 282,  347,  409 

McNally  v.  Diamond  Mills  Paper  Co.,   The   Bulletin,  N.  Y.,   vol.  1,  No. 

11,  p.  12 137 

V.  Diamond  Mills  Paper  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  7,  p. 

8    212,  804 

V.  Fitzgerald,  7  B.  W.  C.  C.  24,  C.  A 214 

V.  Furuess,  Withy  &  Co.,  6  B.  W.  C.  C.  664,  C.  A 608 

McNamara  v.  Ives,  1  Conn.  Comp.  Dec.  41 234 

V.  United    States   Fidelity   &    Guaranty    Co.,    1    Cal.    I.    A.    C.    Dec. 

138  533,  535,  623,  689 

McNeice  v.  Singer  Sewing  Mach.  Co.,  4  B.  W.  C.  C.  351,  Ct.  of  Sess 427 


McNicliolas  CASES   CITED  932 

Page 

McNicholas  v.  Dawson,  1  W.  C.  C.  SO,  C.  A 391 

V.  Dawson,  1  W.  C.  0.  86,  87 549 

McNicol's  Case  (McNicol,  In  re)  215  Mass.  497,  499,  102  N.  E.  697,  L.  R.  A. 

1916A,  306,  4  N.  C.  C.  A.  522 274,  324,  347,  408,  409,  418,  835 

V.  Speirs,  Gibb  &  Co.,  1  F.  604,  Ct.  of  Sess 394,  565 

V,  Summerlee  &  Mossend  Iron  &  Steel  Co.,  4  F.  989 372 

McNiece  v.  Singer  Sewing  Macli.  Co.,  4  B.  W.  C.  C.  351,  Ct.  of  Sess 427 

McPliee,  In  re,  222  Mass.  1,  109  N.  E.  633,  10  N.  C.  C.  A.  257 302,  406,  418, 

490,  822,  836 
McQueeney   v.    Sutplien  &   Hyer,   167  App.   Div.   528,   153   N.    Y.    Supp. 

554 9,  25,  61,  66,  141,  176,  335,  336 

McQiiibban  v.  Menzies,  37  Scottish  Law  R.  526 459 

McRae,  Limited,  v.  Renfrew,  7  B.  W.  C.  C.  898,  Ct.  of  Sess 460 

McRoberts  v.  National  Zinc  Co.,  93  Kan.  364,  144  Pac.  247.  .9,  99,  730,  837,  842 

McSorley,  In  re.  Op.  Sol.  Dept.  of  L.  331 477 

McWeeny  v.   Standard  Boiler  &  Plate  Co.,    (D.  C.)   210  Fed.  507,  4  N. 

C.  C.  A.  919  affirmed  218  Fed.  361,  134  C.  C.  A.  169 6,  735,  736 

McWilliam  v.  Great  Nortli  of  Scotland  R.  Co.,  7  B.  W.  C.  C.  875,  Ct.  of 

Sess 390,  392 

V.  Great  Nortli  of  Scotland  R.  Co.  (1914)  S.  C.  453 390,  392 

McWilliams  v.  Haskins,  1  Conn.  Comp.  Dec.  324 358,  446 

Madden,  In  re,  222  Mass.  487,  111  N.  E.  379 17,  98,  189,  275,  289, 

304,  309,  483,  495 

Maffia  V.  Aquilino,  3  Cal.  L  A.  C.  Dec.  15 121,  554,  50S 

Mahan  v.  Frankfort  General  Ins.  Co.,  2  Cal.  I.  A.  C.  Dec.  530 717,  718,  7SS 

Maher  v.  New  York,  N.  H.  &  H.  R.  R.  Co.,  1  Conn.  Comp.  Dec.  82 687 

V.  Sunset  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  602 618 

Mahomed  v.  Maunsell,  124  L.  T.  Jo.  153,  1  B.  W.  C.  C.  269 157 

Mahoney  v.  Gamble-Desmond  Co.,  90  Conn.  255,  96  Atl.  1025.  .248,  257,  638,  702 

V.  Seymour  Mfg.  Co.,  1  Conn.  Comp.  Dec.  292 635,  667,  793 

V.  Sterling  Borax  Co.,  2  Cal.  I.  A.  C.  Dec.  708 374 

V.  Yosemite  Valley  R.  R.  Co.,  2  Cal,  I.  A.  C.  Dec.  150 235,  640,  641 

Mahowald  v.  Thompson-Starrett  Co.,  (Minn.)  158  N.  W.  913.  .102,  347,  428,  816 

Main  Colliery  Co.  v.  Davies,  A.  C.  358,  H.  L 235 

V.  Davies,  2  W.  C.  C.  108,  16  T.  R.  460 225,  235,  256,  271 

Maire  v.  Wm.  Landauer  &  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  20 228 

Majeau  v.   Sierra  Nevada  Wood   &   Lumber   Co.,   2  Cal.   I.  A.   C.   Dec. 

425    248,  491 

Malewicki  v.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases, 

366    671 

Malkowsky  v.  Silberovicz,  1  Conn.  Comp.  Dec.  136. 748 

Malloy  V.   Fidelity   &  Casualty  Co.  of  New  York,  2  Mass.   Wk.   Comp. 

Cases,    401 398,  436 

Malone  v.  Cayzer,  Irvine  &  Co.,  1  B.  W.  C.  C.  27,  Ct.  of  Sess 509 


933  CASES   CITED  Martin 

Page 

Malone  v.  H.  R.  Douglas,  Inc.,  1  Conn.  Comp.  Dec.  297 715 

Maloney  v.  Waterbury   Fairel  Foundry  &   Macbine  Co.,   1   Conn.  Comp. 

Dec.   220 317,   480,  498 

Malott  V.  Healey,  2  Cal.  I.  A.  C.  Dec.  103 172,  371,  422,  427 

Malzac  v.  Brule  Timber  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  330 267 

Manaloc,  In  re,  Op.  Sol.  Dept.  of  L.  383 649 

Manchester  v.  Massachusetts,  139  U.  S.  240,  11  Sup.  Ct.  559,  35  L.  Ed. 

159     44 

Mandell  y.  ^tna  Life  Ins.  Co.,  1  Cal.  I.  A.  C.  Dec.  265 498 

Mandle  v.  A.  Steinhardt  &  Bro.    (Sup.)   160  N.  Y.  Supp.  2 334 

Manford  v.  Carstenbrook,  3  Cal.  I.  A.  C.  Dec.  21 6G4 

Manfredi  v.  Union  Sugar  Co.,  2  Cal.  I.  A.  C.  Dec.  920 293,  678 

Manis  v.  Milwaukee,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  29 160,  447,  739 

Mann  v.  Glastonbury  Knitting  Co.,  90  Conn.  116,  96  Atl.  368 25,  320,  326, 

350,  389,  394,  396.  397,  398,  571 

V.  Locke,  2  Cal.  I.  A.  C.  Dec.  415 132,  194,  195,  808 

Manning,  In  re.  Op.  Sol.  Dept.  of  L.  279 292 

Manson  v.  Forth  &  Clyde  S.  S.  Co.,  6  B.  W.  O.  C.  830  Ct.  of  Sess 415 

Mantz  V.  Falk  Co.,  Rep.  Wis.  Indus.  Com.  1914-1.5,  p.  15 209 

Marcontonio  v.  The  Charles  Francis  Press,  The  Bulletin,  N.  Y.,  vol.  1, 

No.  12,  p.  16 495,  757 

Margolin  v.  Union  Hardware  Co.,  1  Conn.  Comp.  Dec.  334 580 

Marinaccio  v.  Flinn-O'Rourke  Co.,  172  App.  Div.  378,   158  N.   Y.   Supp. 

715    823 

Marks  v.  Carne,  2  B.  W.  C.  C.  186,  C.  A 181 

Markt  v.  National  Brewing  Co.,  2  Cal.  I.  A.  C.  Dec.  881 312,  772,  808 

Marriott  v.  Brett  &  Beney,  5  B.  W.  C.  C.  145,  C.  A 403 

Marsh  v.  Boden,  7  W.  C.  C.  110,  C.  A 238 

Marshall  v.  Detroit,  Mich.  Wk.  Comp.  Cases  (1916)  57 84,  726,  765 

V.  East  Holywell  Coal  Co.,  7  W.  C.  C.  19 279,  542 

V.  Navigation  Co.,  1  K.  B.  Div.  79 524 

V,  Orient  Steam  Nav.  Co.,  3  B.  W.  C.  C.  15  C.  A 514,  528 

V.  Ransome  Concrete  Co.,  2  Cal.  I.  A.  C.  Dec.  923 711 

V.  Sheppard,  6  B.  W.  C.  C.  571  C.  A 312 

V.  United  States  Fidelity  &  Guaranty  Co.,  2  Mass.  Wk.  Comp.  Cases, 

119     670 

V.  Wild  Rose,  The   (1910)  A.  C.  486 270,  469 

V.  Wild  Rose.  The,  2  B.  W.  C.  C.  76  C.  A 313 

V.  Wild  Rose,  The,  3  B.  W.  C.  C.  76,  O.  A 474 

V.  Wild  Rose,  The,  3  B.  Wl  C.  C.  79 387 

V.  Wild  Rose,  The,  3  B.  W.  C.  C.  514,  H.  L 313 

v.  Wild  Rose,  The,  5  B.  W.  C.  C.  385,  H.  L 474 

Martin  v.  Barnett,  3  B.  W.  C.  C.  146  C.  A 517 

V.  Fullerton  &  Co.,  1  B.  W.  C.  C.  168,  Ct.  of  Sess 450 


Martin  CASES   CITED  934 

Page 

Martin  v.  Lovibond  &  Sons,  7  B.  W.  C.  C.  243,  C.  A 384,  426 

V.  Mahoney  Bros.,  2  Cal.  I.  A.  C.  436 591 

V.  Manchester  Corp.,  5  B.  W.  C.  C.  259  C.  A 279,  541,  544 

V.  Russian  River  Fruit  &  Land  Co.,  1  Cal.  I.  A.  C.  Dec.  18 194 

V.  Sacramento,  2  Cal.  I.  A.  C.  Dec.  701 523 

Martucci  v.  Hills  Bros.  Co.,  171  App.  Div.  370,  156  N.  Y.  Supp.  833 405 

Maryland  Casualty  Co.  v.  Berry,  1  Cal.  I.  A.  C.  Dec.  237 787 

V.  Pillsbury  (Cal.)  158  P.  1031 , 205 

Mashburn  v.  California-Portland  Cement  Co.,  2  Cal.  I.  A.  C.  Dec.  613 593 

aiasich  V.  Northwestern  Pac.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  545 304,  476 

Maskery  v.  Lancashire  Shipping  Co.  (1914)  Stone's  W.  C.  A.  Ins.  Cas.  290 

(Court  of  Appeal,  England) ,  6  N.  C.  C.  A.  708 , 462 

Mason  v.  Knight,  1  Cal.  I.  A.  C.  Dec.  493 521,  615 

V.  Western  Metal  Supply  Co.,  1  Cal.  I.  A.  C.  Dec.  284 126,  168,  216, 

351,  440,  585,  586,  796 

Massa  v.  Crowe,  1  Conn.  Comp.  Dec.  86 295,  498,  502 

Massachusetts  Bonding  &  Insurance  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec. 

480,  170  Cal.  767,  151  Pac.  419,  11  N.  C.  C.  A.  426 615,  697,  709,  733 

Matecny  v.  Vierling  Steel  Works,  187  111.  App.  448 231,  255,  686 

Mathison  v.  Minneapolis  St.  R.  Co.,  126  Minn.  286,  148  N.  W.  71,  73,  5  N. 

C.  C.  A.  871 21,  63,  64,  82,  84,  85,  86,  96,  98,  110,  161 

Matney  v.  Azusa  Irrigating  Co.,  2  Cal.  I.  A.  C.  Dec.  898 195,  366 

Matteoni  v.  Roberts  &  Clark,  1  Cal.  I.  A.  C.  Dec.  356 706 

Matthews  v.  Bedworth,  1  W.  C.  C.  124 417 

Matthiesen  v.  Pacific  Gas  &  Electric  Co.,  1  Cal.  L  A.  C.  Dec.  398 641,  642 

Matwiczuk  v.  American  Car  &  Foundry  Co.,  (Mich.)  155  N.  W.  412 747 

Maurmann  v.  Chirhart  &  Nystedt,  1  Cal.  I.  A.  C.  Dec.  499 512 

Mawdsley  v.  West  Leigh  Colliery  Co.,  5  B.  W.  C.  C.  80,  C.  A 391,  556 

May  V.  Ison,  7  B.  W.  C.  C.  148,  O.  A.,  110  L.  T.  525 360,  377 

Mayhew  v.  Thayer,  8  Gray  (Mass.)   172 263 

Maynardv.  New  London  Ship  &  Engine  Co.,  1  Conn.  Comp.  Dec.  47 454 

Mayott,  In  re.  Op.  Sol.  Dept.  of  L.  765 782 

Maziarski  v.  Ohl   &  Co.,  86  N.  J.  Law,  692,  93  Atl.  110,  111 633 

Mazura  v.  Klingon,  1  Conn.  Comp.  Dec.  296 107,  715 

Mazzarisi  v.  Ward  &  Tully,  170  App.  Div.  868,  156  N.  Y.  Supp.  964 305,  340 

Mazzini  v.  Pacific  Coast  Ry.,  2  Cal.  I.  A.  C.  Dec.  962 123,  206,  365,  413,  592 

Mead  v.  Lockhart,  2  B.  W.  C.  C.  398 819 

Meaddows  v.  Smith  Bros.,  2  Cal.  I.  A.  C.  Dec.  344 , 348 

Mecartea  v.  Marsh,  2  Cal.  I.  A.  C.  Dec.  128 667 

Meese  v.  Northern  Pacific  R.  Co.,   (D.  C.)  206  Fed.  222 732 

Meier  v.  Dublin  Corporation,  2  Ir.  R.  129,  C.  A..- 761 

Meissner,  In  re.  Op.  Sol.  Dept.  of  L.  131 , 342 

Melchor,  In  re,  Op.  Sol.  Dept.  of  L.  646 769 

JMeley,  In  re,  219  Mass.  136,  106  N.  E.  559 25,  629,  632,  634,  822,  843 


935  CASES    CITED  Mikonis 

Page 

Meley  v.  Massachusetts  Employes  Ins.  Ass'n.,  2  Mass,  Wk,  Comp.  Cases, 

404,  affirmed  219  Mass.  136,  106  N.  E.  559 634 

Melia  v.  Race  Brook  Country  Club,  1  Conn.  Comp.  Dec.  549 496 

Mellen  Lumber  Co.  v.  Industrial  Commission,  154  Wis.  114,  142  N.  W.  187, 

L.  R.  A.  1916A,  374,  Ann.  Cas.  1915B,  997 96,  98,  665,  666 

Melling,  In  re.  Op.  Sol.  Dept.  of  L.  129 346 

Melton's  Case,  218  U.  S.  36,  30  Sup.  Ct.  676,  54  L.  Ed.  921,  47  L.  R.  A. 

(N.    S.)    84 80 

Melville  v.  McCarthy,  47  Ir.  L.  T.  R.  57 754 

Memphis  Cotton  Oil  Co.  v.  Tolbert  (Tex.  Civ.  App.)   171  S.  W.  309,  7  N. 

C.  C.  A.  547 58,  65,  66,  73,  110,  112 

Mendocino  Lumber  Co.  v.  Southwestern  Surety  Ins.  Co.,  2  Cal.  I.  A.  O. 

Dec.    755 451,  787 

Menominee  Bay  Shore  Lumber  Co.  v.   Industrial  Commission,  162  Wis. 

344,  156  N.  W.  151 729,  785,  791 

Mentz  V.  Armenia  Fire  Ins.  Co.,  79  Pa.  478,  21  Am.  Rep.  80 72 

Menzies  v.  McQuibban,  2  F.  732,  Ct.  of  Sess 405 

Merchants'  &  Manufacturers'  Bank  v.  Com.,  167  U.  S.  461,  17  Sup.  Ct. 

829,  42  L.  Ed.  236 80 

Merrill  v.  Boston  &  Lowell,  63  N.  H.  256,  260 , 33 

Merriman  v.  Scovill  Mfg.  Co.,  1  Conn.  Comp.  Dec.  596 ..229,  480 

Merritt  v.  Clark  &  Snow,  2  Cal.  I.  A.  C.  Dec.  983 348,  413,  563 

V,  Knife  Falls  Boom  Co.,  34  Minn.  245,  25  N.  W.  403 82 

V.  North  Pacific  S.  S.  Co.,  2  Cal.  I.  A.  C.  Dec.  237 357,  470 

V.  Travelers  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  635 462,  490 

Merry  &  Cuninghame  v.  Black,  2  B.  W.  C.  C.  372,  Ct.  of  Sess 581 

Messick  v.  McEntire,  97  Kan.  813,  156  Pac.  740 553 

Meyer  v.  Pacific  Light  &  Power  Co.,  1  Cal.  I.  A.  C.  Dec.  333 493 

Mezansky  v.  Sissa,  1  Conn.  Comp.  Dec.  430 83,  135 

Michael  v.  Western  Salt  Co.,  2  Cal.  I.  A.  C.  Dec.  501 213 

Michaels,  Barbara,  In  re,  "Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com,  p.  156....  199 
Michigan  Cent.  R.  Co.  v.  Vreeland,  227  U.  S.  59,  33  Sup.  Ct.  192,  57  L.  Ed. 

417,  Ann.  Cas.  1914C,  176 52,  251 

Michigan  Sugar  Co,  v.  Auditor  General,  124  Mich.  677,  83  N.  W.  625,  56 

L.  R.  A.  329,  83  Am.  St.  Rep.  354 70 

Michigan  Workmen's  Compensation  Mut,  Ins.  Co.  v.  Redfleld,  Op.  Mich. 

Indus.  Ace.  Bd.,  Bui.  No.  3,  p.  34 559 

Middleton  v.  Texas  Power  &  Light  Co,  (Tex,)  185  S,  W,  556,  11  N,  C.  C.  A. 

873  69,  72,  73,  74,  80,  87,  96 

Mifsud  V.  Palace  Hotel  Co.,  1  Cal.  I.  A.  C.  Dec.  37 499,  623 

Migeles,  In  re.  Op.  Sol.  Dept.  of  L.  162 345 

Mihaica  v.  Mlagenovich,  1  Cal.  I.  A.  C.  Dec.  174 132,  554 

Mihm  V.  Hussey,  169  App.  Div.  742,  155  N.  Y.  S.  860 332 

Mikonis  v.  Royal  Indemnity  Co.,  2  Mass.  Wk.  Comp.  Cases,  384 670 


Miles  CASES   CITED  936 

Miles  V.  Huntington  Beach  Hardware  Co.,  2  Cal.  I.  A.  C.  Dec.  422 755 

Miller,  In  re,  Vol,  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  46 353 

Miller,  In  re.  Op.  Sol.  Dept.  of  L.  lOS » 187 

V.  ^tna  Springs  Co.,  2  Cal.  I.  A.  C.  Dee.  781 693,  709 

V.  Algar,  2  Cal.  I.  A.  C.  Dec.  584 194 

V.  American  Steel  &  Wire  Co.,  90  Conn.  349,  97  Atl.  345 538,  539,  540 

V.  Libby  &  Blinn,  1  Conn.  Comp.  Dec.  377 413 

V.  New  York,  N.  H.  &  H.  R.  Co.,  1  Conn.  Comp.  Dec.  349 48,  724 

V.  New  York  Rys.  Co.,  171  App.  Div.  316,  157  N.  Y.  Supp.  200.. 163,  164,  731 
V.  Public  Service  R.  Co.,  84  N.  J.  Law,  174,  85  Atl,  1030.  .230,  233,  246,  256 

V.  Riverside  Storage  &  Cartage  Co.  (Mich.)  155  N.  W,  462 

224,  225,  230,  256,  257 
V.  Sovereign  Camp  W.  of  W.,  140  Wis.  505,  122  N.  W.  1126,  28  L.  R,  A. 

(N.  S.)  178,  133  Am,  St  Rep.  1095 266 

V,  Taylor    (Sup.)     159  N.  Y.  Supp.  999 445 

Millers  v.  North  British  Locomotive  Co.,  2  B.  W.  C.  C.  80,  Ct.  of  Sess 455 

Milliken  v.  A.  Towle  &  Co.,  212  Mass.  293,  103  N.  E.  898,  L,  R.  A.  1916A, 

337    504 

Milwaukee  Coke  &  Gas  Co.  v.  Industrial  Commission,  160  Wis.  247,  151 

N.  W.  245 251,  285,  682,  823,  829 

Milwaukee  Western  Fnel  Co.  v.  Industrial  Commission,  159  Wis.  635,  150 

N.  W.  998 313,  475,  819,  823,827,  829 

Miner  v.  Franklin  County  Tel.  Co.,  83  Vt.  311,  75  Atl,  653,  26  L.  R.  A. 

(N.    S.)    1195 397,    45S 

V.  Turnbull,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6,  p.  21 143 

Minnaugh  v.  Brooklyn  Union  Gas  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  8, 

P-  10 398,   46Q 

Minneapolis  &  St.  L.  R.  Co.  v.  Beckwith,  129  U.  S.  26,  9  Sup.  Ct.  207,  32 

L.  Ed.   585 '. . .     G2 

Minneapolis,  St.  Paul  &  S.  S.  M.  R.  Co.  v.  Industrial  Commission,  153  Wis, 

552,  141  N.  W.  1119,  Ann.  Cas.  191  iD,  655,  3  N.  C.  C.  A.  707 104 

Minnesota,  Opinions  of  Attorney  General,  Bui.  9,  p.  8 661 

P-  9     662 

P-  11     147 

P-  12     694 

P-  13     673 

P-  14    672,   695,    697 

P-  15    850 

P-  16     43 

P-  1"^    40,    104 

P-  19     50 

P-  20    50,   196 

P-  22     1S9 


937  CASES   CITED  Mondou 

Page 

Minnesota,  Opinions  of  Attorney  General,  Bui.  9,  p.  23 177 

p.  24     223 

p.  26     222 

p.  27     1S3 

p.  28     495 

Bui.  11,  p.  15 669,  6S4 

p.  16   57,   101 

p.  20     201 

p.  24     733 

p.  29 674 

p.  31     229 

p.    40 608 

Bui.  13,  p.  31 183,  184,  208 

p.    32 171,    184 

p.  33     171 

Mlnnis  v.  Young,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10,  p.  14 512,  516 

Miro,  In  re,  Op.  Sol.  Dept.  of  L.  728 295 

Mississippi  Valley  Trust  Co.  v.  Oregon-Washington  Trust  Co.   (D.  C.)  213 

Fed.    9SS 150 

Missouri  Paciflc  R.  Co.  v.  Mackey,  127  U.  S.  205,  8  Sup.  Ct.  1161,  32  L.  Ed. 

107 65,  80,  81 

Mitchell,  In  re,  vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  56 373 

V.  Crichton,  2  Cal.  I.  A.  C.  Dec.  1005 244,  268 

V.  Fairchild-Gilmore- Walton  Co.,  1  Cal.  I.  A.  C.  Dec.  71 242,  252 

V.  Glamorgan  Coal  Co.,  9  W.  C.  C.  16,  C.  A 468,  746 

V.  McNab  &  Smith,  1  Cal.  I.  A.  C.  Dec.  116 484,  534 

V.  Occidental  Forwarding  Co.,  2  Cal.  A.  C.  Dec.  336 ...678,  701 

V.  Saxon,  The,  5  B.  W.  C.  C.  623,  C.  A 473 

V.  State,  115  Md.  360,  80  Atl.  1020 , 28 

Mitchinson  v.  Day  Bros.,  6  B.  W.  C.  C.  191,  C.  A 409,  436 

Mobile,  J.  &  K.  O.  R.  Co.  v.  Turnipseed,  219  U.  S.  35,  31  Sup.  Ct.  136,  55 
L.  Ed.  78,  32  L.  R.  A.  (N.  S.)  226,  Ann.  Cas.  1912A,  463,  2  N.  C.  C.  A. 

243 65,    82 

Mockett  V.  Ashton,  84  N.  J.  Law,  452,  90  Atl.  127,  4  N.  C.  C.  A.  862 661 

Mockler  v.  Hawkes    (Sup.)  158  N.  Y.  Supp.  759 616,  625 

Moell  V.  Wilson,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10,  p.  15 258,  391 

Moeller  v.  Bereda  Mfg.  Co.,  Bulletin  No.  1,  111.,  p.  66 801 

Mohr  V.  Frederick  L.  Cranford,  Inc.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  6.  p.  10  493 

Molamphy  v.  Sheridan  et  al.,  7  B.  W.  C.  C.  957,  C.  A 526 

Mole  V.  Wadworth,  6  B.  W.  C.  C.  128,  129,  511 37G 

Molloy  V.  South  Wales  Anthracite  Colliery  Co.,  4  B.  W.  C.  C.  65,  C.  A. .  .  356 

Monaghan  v.  United  Collieries,  3  F.  149,  Ct.  of  Sess 128 

Mondou  V.  New  York,  N.  H.  &  H.  B.  Co.,  223  U.  S.  1,  32  Sup.  Ct.  169,  56  L. 
Ed.  327,  38  L.  R.  A.  (N.  S.)  44,  1  N.  C.  C.  A.  875 52,  82,  86 


Monroe  CASES   CITED  938 

Page 

Monroe,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  186 169 

Monroe  v.  Yosemite  Laundry  Co.,  2  Cal.  I.  A.  C.  Dec.  718 210 

Montes,  In  re,  Op.  Sol.  Dept.  of  L.  153 344 

Moore,  In  re,  Op.  Sol.  Dept.  of  L.  143 343 

V.  Lehigh  Valley  R.  Co.,  169  App.  Div.  177,  154  N.  Y.  Supp.  620 

10,  26,  29,  64,  276,  281,  322,  382,  425 

V.  Manchester  Liners,  3  B.  W.  C.  C.  527,  529,  H.  L 

346,  387,  388,  396,  451,  453 

V.  Manchester  Liners,  2  B.  W.  C.  C.  87,  C.  A 387,  451,  453 

Moore  v.  Naval  Colliery  Co.,  5  B.  W.  C.  C.  87,  C.  A. 751 

V.  William  Harkin  &  Sons,  4  N.  Y.  St.  Dep.  Rep.  383 506 

Morales,  In  re,  Op.  Sol.  Dept.  of  L.  295 399 

Moreno  v.  San  Pedro,  Los  Angeles  &  Salt  Lake  R.  R.  Co.,  2  Cal.  I.  A.  C. 

Dec.  754 53 

Morey  v.  Worden,  2  N.  Y.  St.  Dep.  494 594 

Morgan,  In  re,  Op.  Sol.  Dept.  of  L.  177 345 

V.  Zenaida,  The,  2  B.  W.  C.  C.  19,  C.  A 281,  432 

Morgan's  Louisiana  &  L.  R.  &  S.  S.  Co.  v.  Louisiana  Board  of  Health,  118 

U.  S.  455,  6  Sup.  Ct.  1114,  30  L.  Ed.  237 45 

Morgean  V.  Westinghouse,  Church,  Kerr  &  Co.,  1  Conn.  Comp.  Dec.  311. . . .  654 

Morgillo  V.  Westinghouse,  Church,  Kerr  &  Co.,  1  Conn.  Comp,  Dec.  311 654 

Morris  v.  Lambeth  Borough  Council,  8  W.  C.  C.  1,  C.  A 384 

V.  Rowbotham,  8  B.  W.  C.  C.  157,  O.  A 404 

V.  Spears,  1  Cal.  I.  A.  C.  Dec.  317 193 

V.  Turford  &  Southward,  6  B.  W.  C.  C.  606,  C.  A 603 

Morrish  v.  Brookmiller,  2  Cal.  I.  A.  C.  Dec.  76 691 

Morrison  v.  Clyde  Navigation  Trustees,  2  B.  W.  C.  C.  99,  Ct.  of  Sess 454 

V.  FideUty  &  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  594 620 

V,  Los  Angeles  Ry.  Corp.,  2  Cal.  I.  A.  C.  Dec.  18 438 

Morse  V.  Royal  Indemnity  Co.,  1  Cal.  I.  A.  C.  Dec.  53 230,  269 

V.  Waterbury  Clock  Co.,  1  Conn.  Comp.  Dee.  138 413 

Moss  V.  Ames  Iron  Works,  The  Bulletin,  Vol.  1,  No.  8,  p.  9 774 

Moss  &  Co.  V.  Akers,  4  B.  W.  C.  C.  294,  C,  A 531,  828 

Motely  V.  McDonald,  Bulletin  No.  1,  111.,  p.  25 802 

Moyes  v.  Dixon,  Limited,  7  F.  386,  Ct.  of  Sess.  81 237 

Jiluir  V.  Ocean  Accident  &  Guarantee  Corp.,  2  Mass.  Wk.  Comp.  Cases,  172  368 
Mulhall  V.  Fallon,  176  Mass.  276,  57  N.  E.  386,  54  L.  R.  A.  934,  79  Am.  St. 

Rep.    309 1 32 

Mulholland  v.  Hazelton  &  Co.,  36  Ir.  L.  T.  217,  C.  A 404 

Mullan  V.  Rogers,  2  Cal.  I.  A.  C.  Dec.  927 145,  307 

Mullen  V.  Stewart  &  Co.,  1  B.  W.  C.  C.  204,  Ct.  of  Sess 443 

Mulligan  v.  John  Dick  &  Son,  6  Fed.  126,  Ct.  of  Sess 156 

MuUins,  In  re,  Op.  Sol.  Dept.  of  L.  58 188 


939  CASES    CITED  Nelson 

Page 

Mulrooney  v.  Todd  &  The  Bradford  Corp.,  2  B.  W.  0.  C.  191,  C.  A 127 

Mulverhill,  In  re,  Op.  Sol.  Dept.  of  L.  672 304 

Munn,  In  re,  Op.  Sol.  Dept.  of  L.  597 250 

V.  Industrial  Board,  274  111.  70,  113  N.  E.  110.  .  .356,  819,  824,  826,  838,  839 

V.  People  of  State  of  Illinois,  94  U.  S.  113,  24  L.  Ed.  77 86 

Murphy,  In  re,  218  Mass.  278,  105  N.  E.  635,  5  N.  C.  C.  A.  716 638 

Murphy,  In  re   (Mass.)  113  N.  E.  283 231,  255,  548,  571,  824 

V.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp,  Cases,  817, 

affirmed  by  218  Mass.  278,  105  N.  E.  635 639 

V.  Berwick,  2  B.  W.  C.  C.  103,  C.  A 436 

V.  Berwick,  43  Ir.  I.  T.  R.  126 324 

V.  Blycher,  1  Conn.  Comp.  Dec.  443 135 

V.  Casualty  Co.  of  America,  1  Cal.  I.  A.  C.  Dec.  54 316 

V.  Enniscorthy  Board  of  Guardians,  2  B.  W.  C.  C.  291,  C.  A 179 

V.  Standard  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  304 227 

Murphy  &  Sandwith  v.  Cooney,  2  I.  R.  76,  C.  A 460 

V.  Allan  Bros.  &  Co.,  6  B.  W.  0.  C.  215,  C.  A 450 

Murray,  In  re,  Op.  Sol.  Dept.  of  L.  239 299 

V.  North  British  R.  Co.,  6  Fed.  540,  Ct.  of  Sess 156 

Muzik  V.  Erie  R.  Co.,  85  N.  J.  Law,  131,  89  Atl.  248,  86  N.  J-  Law,  695, 

92  Atl.  1087 256 

Muzik  V.  Erie  R.  R.  Co.,  85  N.  J.  Law,  129,  89  Atl.  248,  Ann.  Cas.  1916A, 

140,  affirmed  86  N.  J.  Law,  695,  92  Atl.  1087 233,  469 

Mustaccio  v.  Simpson  Const.  Co.,  Bulletin  No.  1,  111.,  p.  60 798 

Mustaikas  v.  Casualty  Co.  of  America,  2  Mass.  Wk.  Comp.  Cases,  547 305 

Mutter,  Howey  &  Co.  v.  Thomson,  6  B.  W.  C.  C.  424,  Ct.  of  Sess 519 

Mutual  Ace.  Ass'n   v.  Barry,  131  U.  S.  100,  121,  9  Sup.  Ct.  755,  762,  33  L. 
Ed.    60 276 

N 

Naruk  v.  Main,  1  Conn.  Comp.  Dec.  48 606,  611 

Nash  V.  Rangatira,  The,  7  B.  W.  C.  C.  590,  C.  A 451 

Naud  V.  King  Sewing  Mach.  Co.,  95  Misc.  Rep.  676,  159  N.  Y.  Supp.  910. . 

277,  2S0,  818,  830 

Naylor  v.  Musgrave  Spinning  Co.,  4  B.  W.  C.  C.  286,  C.  A 403 

Neel  V.  White,  2  Cal.  I.  A.  O.  Dec.  933 131,  762 

Neimeyer  v.  Volger,  2  Cal.  I.  A.  C.  Dec.  305 192 

Nekoosa-Edwards  Paper  Co.  v.  Industrial  Commission,  154  Wis.  105,  141 

N.  W.  1013,  L.  R.  A.  1916A,  348,  Ann.  Cas.  1915B,  995 565,  507,  823 

Nellis,  In  re,  Op.  Sol.  Dept.  of  L.  286 371 

Nelson,  In  re,  217  Mass.  467,  105  N.  E.  357,  5  N.  C.  C.  A.  694. .  .224,  259,  262 

V.  Belfast  Corp.,  1  B.  W.  C.  C.  158,  C.  A 356,  406 

V.  Fitzgerald,  Bulletin  No.  1,  111.  95 117 


Nelson  CASES   CITED  940 

Pago 

Nelson  V.  Kerr  &  Mitchell,  3  F.  893.  Ct.  of  Sess 577 

V.  Thomas   McLarnon   &   Co.,   The   Bulletin,   N.   Y.,   Vol.   1,  No.   10, 

p.    19    512 

Nesland  v.  Eddy,  131  Minn.  62,  154  N.  W.  6G1 251 

Nesselroad  v.  Castle  Bros.,  2  Cal.  I.  A.  C.  Dec.  529 307 

Netherland  v.  Contra  Costa  Const.  Co.,  1  Cal.  I.  A.  C.  Dec.  440 473 

Neumann  v.  Milwaukee  Electric  Ry.  &  Light  Co.,  Bui.  Wis.  Indus.  Com. 

Vol.   1,  p.  92 454,  559 

V.  Turner,  1  Conn.  Comp.  Dec.  130 107,  742 

Nevada,  Keports  of  Industrial  Commission  1913-14,  p.  16 298 

p.  19  26 

p.  21 5S7,  592,  625 

p.  24 624,  632,  660 

p.  25 35,  209,  277,  290,  4S0 

p.  26 168,  170 

Nevadjic  v.  Northwestern  Iron  Co.,  Bui.  Wis.  Indus.  Com,  Vol.  1,  p.  93.. 

261,  548 
V.  Northwestern  Iron  Co.,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  21,  af- 
firmed 154  Wis.  97,  142  N.  W.  271,  L.  R.  A.  1916A,  366,  Ann. 

Cas.  1915B,  877 261,  548 

New  Amsterdam  Casualty  Co.  v.  Olcott,  165  App.  Div.  603,   150  N.  Y. 

Supp.    772    147 

Newark  Paving  Co.  v.  Klotz,  85  N.  J.  Law,  432,  91  Atl.  91 162,  241 

Newcomb  v.  Albertson,  85  N.  J.  Law,  435.  89  Atl.  928 492,  632 

Newkirk  v.  Union  Ice  Co.,  1  Cal.  L  A.  C.  Dec.  166 706,  718,  791 

Newman  v.  Newman,  218  N.  Y.  325,  113  N.  E,  332,  affirming  169  App.  Div. 

745,  155  N.  Y.  Supp.  665 29,  175,  321,  338,  418 

Newman's  Case,  In  re,  222  Mass.  563,  111  N.  E.  359,  L.  R.  A.  1916C, 

1145 256,  259,  262,  263,  822 

New  Monckton  Collieries  v.  Keeling,  4  B.  W.  C.  C.  49,  C.  A 247 

V.  Keeling,  4  B.  W.  C.  C.  332,  6  N.  C.  C.  A.  240,  H.  L 247 

Newson  v.  Burstall,  8  B.  W.  C.  C.  21,  C.  A 177 

New  York  Shipbuilding  Co.  v.  Buchanan,  84  N.  J.  Law,  543,  87  Atl.  86..  .  661 

Nicholas,  In  re.  Op.  Sol.  Dept.  of  L.  125 342,  346 

V.  Dawson,  15  T.  L.  R.  242 469 

Nicholls  V.  Briton  Ferry  U.  D.  C,  8  B.  W.  C.  C.  42,  C.  A 757,  761 

Nichols,  In  re,  217  Mass.  3,  104  N.  E.  566,  Ann.  Cas.  1915C,  862,  4  N.  G. 

C.  A.  546 28,  639,  640 

V.  London   Guarantee   &   Accident   Co.,   2  Mass.   Wk.   Comp.   Cases, 

814,  affirmed  217  Mass.  3,  104  N.  E.  566,  Ann.  Cas.  1915C,  862.. .  640 

V.  Max  Pollock  Co.,    1  Conn.  Comp.  Dec.  74 622 

V.  Walter,  37  Minn.  264,  33  N.  W.  800 82 

Nickerson,  In  re,  218  Mass.  158,  105  N.  E.  604,  Ann.  Cas.  191 6A,  790,  5 

N.  C.  C.  A.  645 548,  549,  556.  569,  824 


941  CASES   CITED  O'Brien. 

Page 
Nickerson  v.  New  England  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  379. .  561 

Nicoletti  v.  Pennsylvania  Mining  Co.,  2  Cal.  I.  A.  C.  Dec.  347 315 

Niemark  v.  West  Coast  Roofing  Co.,  Bulletin  No.  1,  111.,  p.  56 635 

Nisbet  V.  Rayne  &  Burn,  3  B.  W.  0.  C.  507,  C.  A 2S4 

V.  Rayne  &  Burn,  2  K.  B.  6S9 426,  433,  437 

Nitrain  Co.  v.  Court  of  Common  Pleas,  84  N.  J.  Law,  243,  86  Atl.  435 634 

V.  Creagh,  84  N.  J.  Law,  243,  86  Atl.  435 13,  93,  620,  633 

Noble  State  Bank  v.  Haskell,  219  U.  S.  104,  31  S.  Ct.  186,  55  L.  Ed.  112, 

32  L.  R.  A.  (N.  S.)  1062,  Ann.  Cas.  1912A,  487 98 

Noden  v.  Galloways,  Limited,  5  B.  W.  C.  C.  7,  C.  A 462,  517 

Nolan  V.  Cranford  Co.,  4  N.  Y.  St.  Dep.  Rep.  337,  affirmed  155  N.  Y.  Supp. 

1128    169 

V.  New  England  Casualty  Co.,  2  Mass.  Wk.  Comp,  Cases,  417 409 

V.  Parter  &  Sons,  2  B.  W.  C.  C.  106 359 

Noonan  v.  Ferris,  2  Cal.  I.  A.  C.  Dec.  89 185 

Noriega,  In  re.  Op.  Sol.  Dept.  of  L.  378 645 

Norman  v.  Empire  Lighterage  &  Wrecking  Co.,  2  N.  Y.  St  Dep.  Rep.  480. .  119 

Norris  v.  Lambeth  Borough  Council,  8  W.  C.  C.  3 396 

North  V.  University  of  Illinois,  Bulletin  No.  1,  111.,  p.  63 118,  339 

North  Carolina  R.  Co.  v.  Zachary,  232  U,  S.  248,  34  Sup.  Ct.  305,  58  L. 

Ed.  591,  Ann.  Cas.  1914C,  159,  9  N.  C.  C.  A.  109 379 

Northern  Employers'  Mutual  Indemnity  Co.  v.  Kniveton,  19  T.  L.  R.  504, 

Dist.  Ct,  4  W.  C.  C.  37 146 

Northern  Pac.  R.  Co.   v,  Meese,  239  U.   S.  614,  36  Sup.  Ct  223,  60  L. 

Ed.   467    (55 

Northwestern  Fuel  Co.  v.  Leipus,  161  Wis.  450,  152  N.  W.  856 

624,  625,  628,  629 
Northwestern  Iron  Co.  v.  Industrial  Commission,  154  Wis.  97,  142  N.  W. 

271,  L.  R.  A.  1916A,  366,  Ann.  Cas.  1915B,  877 28,  259,  264,  265, 

266,  821,  823,  825 

V.  Industrial  Commission,  160  Wis.  633,  152  N.  W.  416 382,  396 

Norton  v.  Shore  Line  Electric  R.  Co.,  84  Conn.  24,  35,  78  Atl.  587 827 

Noval  V.  American  Mut.  Liability  Ins.  Co.,  2  Mass.   Wk.  Comp.  Cases, 

586,    C.    A 617 

Nurse,  In  re,  Op.  Sol.  Dept.  of  L.  626 769 

Nycek  v.  C.  Reiss  Coal  Co.,  Bui.  Wis.  Indus.  Com,  1912-13,  p.  23 592 

o 

Oaks  V.  Berkeley  Steel  Co.,  1  Cal.  I.  A.  C.  Dec.  218 844 

Oberts  v.  Wisconsin  Tel.  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p,  24. .  ,486,  713 

O'Brien  v.  Casualty  Co.  of  America,  2  Mass.  Wk,  Comp.  Cases,  226 469 

V.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk.  Comp,  Cases,  398. .  709 
V,  Star  Line,  Limited,  1  B.  W.  C.  C.  177,  Ct  of  Sess. 473 


O'Connell  CASES   CITED  942 

Page 
O'Connell  v.  Simms  Magneto  Co.,  85  N.  J.  Law,  64,  89  Atl.  922,  4  N.  G. 

C.  A.  590 62t> 

O'Connor   v.   London    Guarantee   &   Accident   Co.,   2   Mass.    Wk.    Comp. 

Cases,   387    439 

V.  Yosemite  Lumber  Co.,  2  Cal.  I.  A.  0.  Dec.  334 707 

O'Donnell  v.  Clare  County  Council,  6  B.  W.  C.  C.  457,  C.  A 201,  214 

Ogilvie  V.  Egan,  1  Cal.  I.  A.  C.  Dec.  79 366,  423,  449 

O'Hara  v.  Cadzow  Coal  Co.,  5  F.  439,  Ct.  of  Sess 560 

V.  Hayes,  3  B.  W.  C.  C.  586,  C.  A 308 

O'Hare  v.  Employers'  Liability  Assur.  Corp.,  2  Mass.  "Wk.  Comp.  Cases 

369    496 

Ok?zsezs  V.  Lehigh  Valley  R.  Co.,  170  App.  Div.  15,  155  N.  Y.  Supp.  919.  .     46 

Oldenberg  v.  Industrial  Commission,  159  Wis.  333,  150  N.  W.  444 823,  830 

Oldham  v.  Southwestern  Surety  Ins.  Co.,  1  Cal.  A.  C.  Dec.  258 370,  377 

Oleskie  v.  Dodge  Bros.,  Mich.  Wk.  Comp.  Cases  (1916)  45 845 

Oliveira  v.  Mtna  Life  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  517 671 

Oliver  v.  Christopher,  98  Kan.  660,  159  Pac.  397 778,  837,  841 

V.  Mat-on  Hardware  Co.,  98  Ga.  249,  25  S.  E.  403,  58  Am.  St.  Rep. 

300    183,   186 

V.  Nautilus  Steam  Shipping  Co.,  2  K.  B.  639,  C.  A.  5,  W.  C.  C.  65 157 

Ollie  V.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  676 532 

Olney  v.  West  Side  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  272 493 

Olsen  V.  Hale,  2  Cal.  I.  A.  C.  Dec.  607 313,  387 

V.  Rogers  Development  Co.,  2  Cal.  I.  A.  C.  Dec.  586 184 

V.  Western  Fuel  Co.,  2  Cal.  I.  A.  C.  Dec.  643 657 

Olson,  In  re.  Op.  Sol.  Dept.  of  L.  136 342 

Olson,  In  re.  Op.  Sol.  Dept.  of  L.  141 344 

V.  Dorset,  The,  6  B.  W.  C.  C.  658,  C.  A 311 

V.  Hillman's,  Inc.,  Bulletin  No.  1,  111.  p.  121 749 

V.  Olson  Winery  Co.,  2  Cal.  I.  A.  C.  Dec.  325 578 

V.  Tice,  2  Cal.  I.  A.  C.  Dec.  333 658 

O'Neal  V.  Pahner  &  McBryde,  2  Cal.  I.  A.  C.  Dec.  745 781 

Oneida  Steel  Pulley  Co.,  In  re  (N.  Y.)  113  N.  E.  455 844 

O'Neil  V.  Carley  Heater  Co.,  218  N.  Y.  414,  113  N.  E.  406 435 

O'Neill  V.  Brown  &  Co.,  (1913)  S.  C.  653 526 

V.  Brown  &  Co.,  6  B.  W.  C.  C.  428,  Ct.  of  Sess 528 

Opinion  of  Justices,  In  re,  209  Mass.  607,  96  N.  E.  308,  309,  1  N.  C.  C.  A. 

557 81,   85,   97 

Opinions  of  Attorney  Generals  of  various  states  wiU  be  found  in  this 

table  under  the  name  of  the  state. 
Opinions  of  Comptroller  of  Treasury  will  be  found  under  "Federal  Act" 

in  this  table. 
Opinions  of  Special  Counsel  to  Iowa  Industrial  Commission  will  be  found 
in  this  table  under  "Iowa". 


943  CASES   CITED  Fapinaw 

Page 

Opitz  V.  Chas.  Hoertz  &  Son,  Mich.  Wk.  Comp.  Cases  (1916)  311 136,  144 

O'Regan  v.  Cunard  S.  S.  Co.,  160  Mass.  356,  361,  35  N.  E.  1070,  39  Am. 

St.  Rep.  484 159 

Oregon,  First  Annual  Reports  Industrial  Accident  Commission  June  30, 

1915,   p.   6 22 

p.    7    23 

p.    10    23 

p.   18     503 

p.    19     14 

p.    22 22 

p.   23     21 

p.  24    13,   21 

p.    42 20 

Orient  Ins.  Co.  of  Hartford,  Conn.  v.  Daggs,  172  U.  S.  557,  19  Sup.  Ct. 

281,  43  L.  Ed.  552 80 

O'Rourke  v.  Cudahy  Packing  Co.,  1  Conn.  Comp.  Dec.  8 107 

Osgood,  In  re.  Op.  Sol.  Dept.  of  L,  391 490 

Ostrowski  v.  Stanley  Iron  Works,  1  Conn.  Comp,  Dee.  554 241 

Otot  V.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  254..  496 

Owen  V.  Mahoney  Bros.,  1  Cal.  I.  A.  C.  Dee.  308 656 

Oyos  V.  Pacific  Sewer  Pipe  Co.,  2  Cal.  I.  A.  C.  Dec.  622 470 


Pacific  Coast  Casualty  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  538,  171  Cal. 

52,  151  Pac.  658 806,  810 

V.  PUlsbury,  171  Cal.  319,  153  Pac.  24. ..  .515,  521,  719,  774,  797,  810,  835 

Paddington  Borough  Council  v.  Stack,  2  B.  W.  C.  C.  402,  C.  A 527 

Page  V.  Burtwell,  2  K.  B.  758,  C.  A 156,  739 

Pagliarulo,  In  re,  Op.  Sol.  Dept.  of  L.  503 573 

Palacios,  In  re,  Op.  Sol.  Dept.  of  L.  162 345 

Palama  v.  Chase  Metal  Works,  1  Conn.  Comp.  Dec.  444 311,  413,  480 

Palmer  v.  Scheidenhelm,  Bulletin  No.  1,  111.,  p.  135 '. 634 

Palmeri  v.  Greist  Mfg.  Co.,  1  Conn.  Comp.  Dec.  669 349,  414 

Pampuro  v.  Murray  Bros.,  1  Conn.  Comp.  Dec.  674 698 

Panama-Pacific  International  Exposition  Co.  v.  Hooper,  1  Cal.  I.  A.  C. 

Dec.    429 191,    198 

Panasuk,  In  re  (Pansuk's  Case)  217  Mass.  589,  105  N.  E.  368,  5  N.  C. 

C.  A.  688 25,  689,  696,  697,  698,  784 

V.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  338, 

affirmed  217  Mass.  589,  105  N.  E.  368 698 

Pangburn,  In  re.  Op.  Sol.  Dept.  of  L.  138 343 

Pansoda  v.  Bridgeport  Hydraulic  Co.,  1  Conn.  Comp.  Dec.  118 240 

Paplnaw  v.  Grand  Trunk  R.  Co.,  (Mich.)  155  N.  W.  545 347,  825 


Pappas  CASES   CITED  944 

Page 

Pappas  V.  "Warren,  2  Cal.  I.  A.  C.  Dec.  874 193 

Pappiani  v.  WMte  Oak  Crushed  Stone  Co.,  1  Conn.  Comp.  Dec.  619 270 

Parini  v.  Selby  Smelting  &  Lead  Co.,  2  Cal.  I.  A.  C.  Dec.  192 535,  680 

Parker  v.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases, 

392    411,  478 

V.  Black  Rock,  The,  7  B.  W.  C.  C.  152,  C.  A 459 

V.  Hambrock,  5  B.  W.  C.  C.  60S,  C.  A 393,  400 

V.  Pont,  5  B.  W.  C.  C.  45,  C.  A 455 

V.  Pout,  105  L.  T.  493 376 

Parro  v.  New  York,  S.  &  W.  R.  Co.,  85  N.  J.  Law,  155,  88  AtL  825,  4  N. 

C.  C.  A.  680 813 

Parsley  v.  O'Brien  Bros.,  1  Cal.  I.  A.  C.  Dec.  494 640 

Parsons  v.  Delaware  &  Hudson  Co.,  167  App.  Div.  536,  153  N.  Y.  Supp. 

179    46,    176 

Partridge  v.  Whiteley,  Limited,  8  B.  W.  C.  C.  53,  C.  A 456 

Pascale  v.  S.  L.  &  G.  H.  Rogers  Co.,  1  Conn.  Comp.  Dec.  33 633 

Passus,  In  re.  Op.  Sol.  Dept.  of  L.  371 649 

Patch  V.  First  Nat.  Bank,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  9 482,  777,  792 

Paterson  v.  Lockhart,  7  F.  954,  Ct.  of  Sess 214 

V.  Moore  &  Co.,  3  B.  W.  C.  C.  541,  Ct.  of  Sess 577 

Paton  V.  Dixon,  Limited,  6  B.  W.  C.  C.  882,  Ct.  of  Sess 522,  542 

Patralia  v.  American  Brass  Co.,  1  Conn.  Comp.  Dec.  412 709 

Pattberg  v.  Young  &  Swain  Baking  Co.,  2  Cal.  I.  A.  C.  Dec.  883 315 

Patterson,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  33 475,  778 

Patterson,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  157 763 

V.  Bloomington,  D.  &  C.  R.  Co.,  Bulletin  No.  1,  111.  p.  101 301,  452 

Pattison  v.  White  &  Co.,  6  W.  C.  C.  61,  C.  A 129 

Paul  V.  Johnson  Bros.,  3  Cal.  I.  A.  C.  Dec.  32 719 

V.  Nikkei,  1  Cal.  I.  A.  C.  Dec.  648 137,  204,  205,  406 

Pawlak  V.  Hayes,  162  Wis.  503,  156  N.  W.  464,  11  N.  C.  C.  A.  752 520,  742 

Payne  v.  Barlow,  84  Kan.  132,  113  Pac.  432 73 

Peabody  v.  Superior,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  99 137 

Pearce  v.  Southwestern  R.  Co.,  2  W.  C.  C.  152 427 

Pearl  v.  Harris,  121  Mass.  390 71 

Pears  v.  Gibbons,  6  B.  W.  C.  C.  722,  C.  A ISO 

Peck  V.  San  Francisco-Oakland  Terminal  Rys.,  1  Cal.  I.  A.  C.  Dec.  462 

505,  519 
Pedersen  v.  Delaware,  L.  &  W.  R.  R.,  229  U.  S.  146,  33  Sup.  Ct.  648,  47  L. 

Ed.  1125,  Ann.  Cas.  1914C,  153,  3  N.  O.  C.  A.  779 55 

Pedez,  In  re,  Op.  Sol.  Dept.  of  L.  171 344 

Pedroni  v.  C.  W.  Blakeslee  &  Sons,  1  Conn.  Comp.  Dec.  670 710 

Peel  V.  Lawrence  &  Sons,  5  B.  W.  C.  C.  274,  C.  A 418,  419 

Peet  V.  Mills,  76  Wash.  437,  136  Pac.  685,  L.  R.  A.  1916A,  358,  Ann.  Cas! 
1915D,  154,  4  N,  C.  C.  A.  786 19,  25,  27,  58,  73,  732 


945  CASES   CITED  Philadelpliia 

Page 

Peggie  V.  Wemyss  Coal  Co.  (1910)  S.  C.  93,  Ct.  of  Sess 765 

Pelham  v.  Burstein,  1  Conn.  Comp.  Dec.  49 569,  693,  723 

Pellett  V.  Industrial  Commission  of  Wis.,  162  Wis.  596,  156  N.  W\  956.  .754,  760 
Peloquin  v.  Fidelity  &  Deposit  Co.  of  Maryland,  2  Mass.  Wk.  Comp.  Cases, 

718 259 

Penfield  v.  Glastonbury,  1  Conn.  Comp.  Dec.  637 204,  209,  369,  580 

Penn  v.  Spiers  &  Pond,  1  B.  W.  C.  C.  401,  C.  A 575 

Pennington  v.  Geo.  W.  Pennington  Sons,  2  Cal.  I.  A.  C.  Dec.  994 726 

Pensabene  v.  F.  &  J.  Auditore  Co.,  78  Misc.  Rep.  538,  138  N.  Y.  Supp.  947 

40,  91,     92 

People  V.  Brady,  268  111.  192,  108  N.  E.  1009 24 

V.  Henning  Co.,  260  111.  554,  103  N.  E.  530 24 

V.  McCue,  150  Cal.  195,  88  Pac.  899 785,  829 

V.  Township  Board  of  Salem,  20  Mich.  452,  4  Am.  Rep.  400 70 

People  ex  rel.  Kinney  v.  White,  64  App.  Div.  390,  392,  72  N.  Y.  Supi).  91. .  329 

Pepper  v.  Sayer,  7  B.  W.  C.  C.  616,  C.  A 389 

Peres  v.  Wand,  1  Cal.  I.  A.  C.  Dec.  607 697 

Perkins,  In  re,  Op.  Sol.  Dept.  of  L.  579 248 

Peroni  v.  San  Francisco,  Napa  &  Calistoga  Ry.,  2  Cal.  I.  A.  C.  Dec.  818. . .  466 

Perry  v.  Anglo-American  Decorating  Co.,  3  B.  W.  C.  C.  310 359 

V.  Ocean  Coal  Co.,  5  B.  W.  C.  C.  421 308 

V.  San  Jose,  1  Cal.  I.  A.  C.  Dec.  537 446,  4.52 

V.  Wright,  1  B.  W.  C.  C.  354 592 

Petch  V.  Lamont  &  Richardson,  2  Cal.  I.  A.  C.  Dec.  982 803 

Peters  v.  Indianapolis  Abattoir  Co.,  1  Conn.  Comp.  Dec.  263 618 

Peters,  In  re,  Vol.  1,  No.  7,  Bui,  Ohio  Indus.  Com.  p.  25 540 

Petersen  v.  Pellasco,  2  Cal.  I.  A.  C.  Dec.  199.  ..178,  205,  207,  665,  781,  790,  80S 

V.  Sperry  &  Barnes,  1  Conn.  Comp.  Dec.  370 481 

V.  Valley  Pipe  Line  Co.,  2  Cal.  I.  A.  C.  Dec.  606 438,  439 

Peterson  v.  H.  B.  Beach  &  Sons,  1  Conn.  Comp.  Dec.  469 713,  714,  716 

V.  State  of  California,  2  Cal.  I.  A.  C.  Dec.  48 182 

Petrie,  In  re,  215  N.  Y.  335,  109  N.  E.  549 25,  633 

In  re  (N.  Y.)  113  N.  E.  455 844 

In  re,  165  App.  Div.  561,  151  N.  Y.  Supp.  307 633 

Petrock  v.  Keystone  Steel  &  Wire  Co.,  Bulletin  No.  1,  111.,  p.  SO 802 

Petrozino  v.  American  Mut.  Liability  Co.  (Caliendo's  Case)  219  Mass.  498, 

107  N.  E.  370 225,  238,  239,  257 

Petrucci  v.  Red  River  Lumber  Co.,  3  Cal.  I.  A.  C.  Dec.  40 260 

Petschelt  v.  Preis,  8  B.  W.  C.  C.  44,  C.  A 542,  761 

Pettee  v.  Noyes  (Minn.)  157  N.  W.  995 190 

Pettit  V.  Mendenhall,  2  Cal.  I.  A.  C.  Dec.  212 285,  748 

Pfaender  v.  Chicago  &  N.  W.  R.  Co.,  86  Minn.  218,  90  N.  W.  393 82 

Philadelphia,  B.  &  W.  R.  Co.  v.  Schubert,  224  U.  S.  603,  32  Sup.  Ct.  589, 
56  L.  Ed.  911 66 

HoN.CoMP.— 60 


Phailips  CASES    CITED  946 

Page 

Phillips,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  49 364 

T.  Chanslor-Canfleld  Midway  Oil  Co.,  1  Cal.  I.  A.  C.  Dec.  580 

354,  412,  552,  567,  588,  611,  798 

V.  Pacific  Gas  &  Electric  Co.,  2  Cal.  I.  A.  C.  Dec.  789 400 

V.  Williams,  4  B.  W.  C  C.  143,  O.  A 356,  401 

Philp  V.  International  Silver  Co.,  1  Conn.  Comp.  Dec.  448 699 

Piatt  V.  Swift  &  Co.,  188  Mo.  App.  584,  176  S.  W.  434 101,  108,  739 

Pickett,  In  re,  Op.  Sol.  Dept.  of  L.  80 18^ 

Pidgeon  v.  Maryland  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  348.. 463 

Pierce  v.  Boyer-Van  Kuran  Lumber  &  Coal  Co.,  99  Neb.  321,  156  N.  W.  509, 

Ann.  Rep.  Neb.  St.  Dept.  of  L.  1915,  Bulletin  32,  p.  94 

320,  410,  441,  659,  660 

V.  Provident  Clothing  &  Supply  Co.,  4  B.  W.  C.  C.  242,  C.  A 426 

Pigeon  V,  Employers'  Liability  Assur.  Corp.,  216  Mass.  51,  102  N.  E.  932, 

Ann.  Cas.  1915A,  737,  4  N.  C.  C.  A.  516 

122,  385,  447,  724,  777,  784,  785,  821,  822,  836: 

Pimm  V.  Clement  Talbot,  Limited,  4  B.  W.  C.  C.  565,  C.  A 753 

Pinel  V.  Rapid  Ry.  System,  184  Mich.  169,  150  N.  W.  897 228 

Pinoza  v.  Northern  Chair  Co.,  152  Wis.  473,  140  N.  W.  84 113 

Pitt  V.  Central  Illinois  Public  Service  Co.,  273  111.  617,  113  N.  E.  153 831 

Pizzo  V.  Wiemann,  149  Wis.  235,  134  N.  W.  899,  38  L.  R.  A.  (N.  S.)  678, 

Ann.  Cas.  1913C,  803,  3  N.  C.  C.  A.  149 113 

Plass  V.  New  England  R.  Co.,  169  App.  Div.  826,  155  N.  Y.  Supp.  854.  .301,  823 

Pliska  V.  Hatton  Lumber  Co.,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  95 272 

Plumb  V.  Cobden  Flour  Mills  Co.  (1914)  App.  C.  62  (Eng.) 321,  779 

V.  Cobden  Flour  Mills  Co.,  6  B.  W.  C.  C.  245,  C.  A 455 

V.  Cobden  Flour  Mills  Co.,  7  B.  W.  C.  C.  1,  H.  L 455 

V.  Cobden  Flour  Mills  Co.,  7  B.  W.  C.  C.  6 392 

Poccardi  v.  Public  Service  Commission,  75  W.  Va.  542,  84  S.  E.  242,  L.  R. 

A.  1916A,  299 282,313,467,483,746,826,  828 

Pogue  V.  Nassau  Light  &  Power  Co.,  1  N.  Y.  St.  Dep.  Rep.  429 366 

Polin  V.  Bristol  Bay  Packing  Co.,  3  Cal.  I.  A.  C  Dec.  12 34 

Poling  V.  Brown,  Bulletin  No.  1,  111.,  p.  21 117,  719 

Pollard  V.  Goole  &  Hull  Steam  Towing  Co.,  3  B.  W.  C.  C.  366,  C.  A 122,  124 

Polled  V.  Great  Northern  R.  Co.,  5  B.  W.  C.  C.  620,  C.  A 247 

Pollock  V.  Wagner  Leather  Co.,  3  Cal.  I.  A.  C.  Dec.  37 244 

Pomfret  v.  Lancashire  &  Y.  R.  Co.,  2  K.  B.  718,  5  W.  C.  C  22 427,  472 

Ponce  V.  Engstrum  Co.,  2  Cal.  I.  A.  C.  Dec.  370 315 

Ponder  v.  Adams  &  McBratney,  1  Cal.  I.  A.  C.  Dec.  207 553 

Pope  V.  Hey  wood  Bros.  &  Wakefield  Co.,  221  Mass.  143,  108  N.  E.  1058 109 

V.  Hill's  Plymouth  Co.,  5  B.  W.  C.  C.  175,  H.  L 456 

V.  Hill's  Plymouth  Co.,  102  L.  T.  R.  632,  3  B.  W.  C.  C  339,  C.  A..  .456,  570 

V.  Hill's  Plymouth  Co.,  105  L.  T.  R.  678,  5  B.  W.  C.  C.  175 570 

Poppos  V.  Silver  Palace  Theatre  Co.,  2  Cal.  I.  A.  C.  Dec.  397 497 


947  CASES   CITED  Pryce 

Page 

Porter  v.  Anderson,  1  Cal.  I.  A.  C.  Dec.  608 485 

V.  Anderson,  2  Cal.  I.  A.  C.  Dec.  67 806 

V.  Noble,  1  Cal.  I.  A.  C.  Dec.  5S8 521 

V.  Whitbread  &  Co.,  7  B.  W.  C.  C.  205,  C.  A 663 

Portnoy  v.  Fidelity  &  Casualty  Co.  of  New  York,  2  Mass.  Wk.  Comp. 

Cases,    823 617 

Porton  V.  Central  (Unemployed)  Body  for  London,  2  B.  W.  C.  C.  296,  C.  A. 

181,  579 

Posey,  In  re,  Op.  Sol.  Dept.  of  L.  183 345 

Post  V.  Burger  &  Gohlke,  216  N.  Y.  544,  111  N.  E.  351,  Ann.  Cas.  1916B, 

158,  10  N.  C.  C.  A.  888. 33,  34,  175 

Postex  Cotton  Mill  Co.  v.  McCamy  (Tex.  Civ.  App.)  184  S.  W.  570 73 

Potter,  In  re,  Op.  Sol.  Dept.  of  L.  272 301 

V.  Welch  &  Sons,  7  B.  W.  C.  C.  738,  C.  A 753 

Potts  V.  Niddrie  &  Benhar  Coal  Co.  (1913)  A.  C.  531,  538 257 

V.  Pacific  Stevedoring  &  Ballasting  Co.,  1  Cal.  I.  A.  C.  Dec.  630 567 

Poulton  V.  Kelsall,  5  B.  W.  C.  C.  318,  C.  A 362,  385 

Powell  V.  Brown,  1  Q.  B.  157,  C.  A.  1  W.  C.  C.  44 130 

V.  Brynddu  Colliery  Co.,  5  B.  W.  C.  C.  124,  C.  A 456 

V.  Lanarkshire  Steel  Co.,  6  F.  1039,  Ct.  of  Sess 401,  456,  561,  562 

V,  Main  Colliery  Co.,  2  W.  C.  C.  25,  A.  C 762 

V.  Main  Colliery  Co.,  2  W.  C.  C.  29,  H.  L 7G9 

V.  Main  Colliery  Co.  (1900)  A.  C.  366 739 

V.  State  of  Pennsylvania,  127  U.  S.  678,  8  Sup.  Ct.  992,  1257,  32  L.  Ed. 

253 63 

Powely,  In  re,  169  App.  Div.  170,  154  N.  Y.  Supp.  426 217,  685,  823 

Powers,  In  re.  Op.  Sol.  Dept.  of  L.  214 318 

In  re,  Op.  Sol.  Dept.  of  L.  622 770 

V.  Smith,  3  B.  W.  C.  C.  470,  C.  A 492 

Preston,  Ex  parte,  72  Tex.  Cr.  R.  77,  161  S.  W.  115 222 

Price,  In  re.  Op.  Sol.  Dept.  of  L.  163 346 

V.  Burnyeat,  Brown  &  Co.,  2  B.  W.  C.  C.  337,  C.  A 603 

V.  Clover  Leaf  Coal  Mining  Co.,  188  111.  App.  27 90,  100,  109 

V.  Occidental  Life  Ins.  Co.,  169  Cal.  800,  147  Pac.  1175 278 

V.  Tredegar  Iron  &  Coal  Co.,  7  B.  W.  C.  C.  387,  C.  A 455,  547 

Prichard  v.  American  Beet  Sugar  Co.,  2  Cal.  I.  A.  C.  Dec.  341 226,  228,  268 

Printy  v.  Jacobsen-Bade  Co.,  1  Cal.  I.  A.  C.  Dec.  519 535 

Pritchard  v.  Torkington,  7  B.  W.  C.  C.  719,  C.  A 455 

Prockuau,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  66 399 

Proctor  &  Sons  v.  Robinson,  3  B.  W.  C.  C.  41,  C.  A 606 

Prohaska  v.  American  Typewriter  Co.,  1  Conn.  Comp.  Dec.  116 715 

Proprietors  of  Hays'  Wharf,  Limited,  v.  Brown,  3  B.  W.  C.  C.  84 524 

Proulx  V.  Hudson  &  Sons,  Bulletin,  No.  1,  111.  45 518 

Pryce  v.  Penrikyber  Nav.  Colliery  Co.  1  K.  B.  221 225 


Pryce  CASES   CITED  948 

Page 

Pryce  v.  Penrikyber  Nav.  Colliery  Co.,  4  W.  C.  C.  115,  C.  A 252 

Przykopenski  v.  Citizens'  Coal  Co.,  270  111.  275,  110  N.  E.  336 64 

Pnddy  v.  Fitch,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  17 130 

Puget  Sound  Traction,  Light  &  Power  Co.  v.  Schleif,  220  Fed,  48,  135  C. 

C.  A.  616 - lOG,  341 

Pugh  V.  Dudley,  7  B.  W.  C.  C.  528,  C.  A 467 

Puljevich  V.  Lime  Rock  Sugar  Co.,  1  Cal.  I.  A.  C.  Dec.  165 205,  500 

Pumpauelli  v.  Aberthaw  Const.  Co.,  1  Conn.  Comp.  Dec.  620 656 

Purdy  V.  Sault  Ste.  Marie  (Mich.)  155  N.  W.  597 750 

Puridzy  v.  Winchester  Repeating  Anns  Co.,  1  Conn.  Comp.  Dee.  420 611 

Purnell  v.  State  Board  of  Education,  125  Md.  266,  93  Atl.  518 28 

Purse  V.  Hayward,  85  L.  T.  502 288 

Puterbaugh,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  143 389 

Putnam  v.  Murray,  The  Bulletin,  X.  Y.  vol.  1,  No.  4,  p.  9 325,  776 

Puza  V.  C.  Hennecke  Co.,  158  Wis.  482,  149  N.  W.  223 112, 113 

Pyle  V.  Pyle,  158  111.  289,  41  N.  E.  999 774 

Pyrah,  In  re,  Op.  Sol.  Dept.  of  L.  129 312 

Q 

Queen  t.  Baird  &  Co.,  6  F.  271,  Ct.  of  Sess 407,  560 

V.  Clarke,  2  Ir.  R.  135 245 

V.  Hepburn,  11  U.  S.  (Cranch.)  296,  3  L.  Ed.  348 776 

Query  of  Naval  Constructor  of  Boston  Navy  Yard,  In  re,  Op.  Sol.  Dept. 

of  L.  345 640 

Quinlan  v.  Barber  Asphalt  Pav.  Co.,  84  N.  J.  Law,  510,  87  Atl.  127 643 

Quinu  V.  McCallum,  2  B.  W.  C.  C.  339 514 

V.  McCallum,  46  S.  L.  R.  141,  Ct.  of  Sess 511 

Quong  Wing  v.  Kirkendall,  39  Mont.  64,  101  Pac.  250 82 

R 

Racujja  v.  National  Folding  Box  &  Paper  Co.,  1  Conn.  Comp.  Dec.  522. . . .  718 

Radcliffe  v.  Pacific  Steam  Nav.  Co.,  3  B.  W.  C.  C.  185,  C.  A 67G 

V.  Pacific  Steam  Nav.  Co.  (1910)  IK.  B.  685 590 

Radigen  v.  Sanitary  Dist.  of  Chicago,  Bulletin  No.  1,  111.,  p.  138..  .16,  100,  125 

Radley  v.  Nephew,  2  Cal.  I.  A.  C.  Dec.  78 484 

Railroad  Co.  v.  Beckwith,  129  U.  S.  26,  9  Sup.  Ct.  207,  32  L.  Ed.  585 62 

V.  Berry,  31  Tex.  Civ.  App.  408,  72  S.  W.  1049 186 

V.  Mackay,  127  U.  S.  205,  8  Sup.  Ct.  1161,  1163,  32  L.  Ed.  107 65,  SO,  81 

V.  Matthews,  174  U.  S.  106,  19  Sup.  Ct.  609,  43  L.  Ed.  909 SO 

V.  Schubert,  224  U.  S.  603,  32  Sup.  Ct.  589,  56  L.  Ed.  911 66 

V.  Turnipseed,  219  U.  S.  35,  31  Sup.  Ct.  136,  55  L.  Ed.  78,  32  L.  R.  A. 

(N.  S.)  226,  Ann.  Cas.  1912A,  463,  2  N.  C.  C.  A.  243 65,  82 


949  CASES   CITED  Rees 

Page 
Railroad  Co.  v.  Westby,  102  C.  C.  A.  65,  178  Fed.  619,  47  L.  R.  A.  (N.  S.)  97    80 

Rally  V.  Island  Transp.  Co.,  2  Cal.  I.  A.  C.  Dec.  608 5S3,  000,  678 

Rainey  v.  McClain,  1  Cal.  I.  A.  C.  Dec.  57 571,  080 

Rains  v.  Diamond  Match  Co.,  171  Cal.  326,  153  Pac.  230 831 

Rakiec  v.  Delaware,  L.  &  W.  R.  Co.  (N,  J.  Sup.)  88  Atl.  953,  4  N.  C.  C.  A. 

734   630,  635,  840 

Ralph  V.  Mitchell,  6  B.  W.  C.  C.  678,  C.  A 756 

Ramirez  v.  Binkley  &  Wayne,  3  Cal.  I.  A.  C.  Dec.  33 667 

Ramlow  V.  Moon  Lake  Ice  Co.  (IMich.)  158  N.  W.  1027 482,  550 

Rankine  v.  Alloa  Coal  Co.,  6  F.  375,  Ct.  of  Sess 752 

Ransom,  In  re,  Op.  Sol.  Dept.  of  L,  103 187 

Raper  v.  Harrison,  37  Kan.  243,  15  Pac.  219 763 

Raphael,  The,  v.  Brandy,  4  B.  W.  C.  C.  307,  H.  L.,  6  C.  A 58(> 

Ratcliff  V.  DeWitt  Co.,  1  Cal.  I.  A.  C.  Dec.  639 192 

Rathbone  v.  Hopper,  57  Kan.  240,  45  Pac.  610,  34  L.  R.  A.  674 73 

Ratzberg  v.  Deltox  Grass  Rug  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  34. . .  317 

Ravenscroft  v.  Packard,  3  Cal.  I.  A,  C.  Dec.  24 207 

Raymond  t.  Chicago,  M.  &  St.  P.  R.  Co.  (C.  C.  A.)  233  Fed.  239 

55,  58,  62,  67,  68 
Rayner  v.   Sligh  Furniture  Co.,  ISO  Mich.  168,  146  N.  W.  665,  L.  R.  A. 

1916 A,  22,  Ann.  Cas.  1916A,  386,  4  N.  C.  C.  A.  851.  . .  .325,  361,  823,  839 
V.  Sligh  Furniture  Co.,  Op.  Mich.  Indus.  Ace.  Bd.  Bui.  No.  3,  p.  22...  393 

Razziuni  v.  John  Salter  &  Son,  1  Conn.  Comp.  Dec.  687 714 

Read  v.  Bowman,  2  Cal.  I.  A.  C.  Dec.  6S1 702 

Reardon  v.  Philadelphia  &  R.  R.  Co.,  85  N.  J.  Law,  90,  88  Atl.  970,  4  N. 

C.  C.  A.  776 220,  643 

Rebello  v.  Marin  County  Milk  Producers,  1  Cal.  I.  A.  C.  Dec.  87 282,  778 

Reck  V.  Whittlesberger,  181  Mich.  463,  148  N.  W.  247,  Ann.  Cas.  1916C, 

771,  5  N.  C.  C.  A.  917 71,  406,  774,  777,  778,  780,  783,  795,  829 

Redburn,  In  re.  Op.  Sol.  Dept.  of  L.  154 344 

Redfield  v.  Michigan  Workmen's  Compensation  Mut.  Ins.  Co.,  183  Mich. 

633,  150  N.  W.  362,  8  N.  C.  C.  A.  889 793.  822,  838 

Rediger  v.  Pekin  Wagon  Co.,  Bulletin  No.  1,  111.  p.  146 667,  773 

Redondo,  In  re.  Op.  Sol.  Dept.  of  L.  503 709 

Reed  v.  Booth  &  Piatt  Co.,  1  Conn.  Comp.  Dec.  121 168,  424 

T.  Great  Western  R.  Co.,  2  B.  W.  C.  C.  109,  H.  L 401 

V.  Orient  Music  Co.,  1  Conn.  Comp.  Dec.  36 699 

V.  Rothe,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  33 244,  248 

V.  Smith,  Wilkinson  &  Co..  3  B.  W.  C.  C.  223,  C.  A 120 

V.  Washington  Fire  &  Marine  Ins.  Co.,  138  Mass.  572 72 

V.  Winn,  2  Cal.  I.  A.  C.  Dec.  687 197 

V.  Zelinsky,  1  Cal.  I.  A.  C.  Dec.  496 684 

Reeks  v.  Kynoch,  Limited,  4  B.  W.  C.  C.  14,  C.  A 562 

Rees,  In  re.  Op.  Sol.  Dept.  of  L.  599 250 


Rees  CASES   CITED  950 

Page 

Rees  V.  Penrikyber  Nav.  Colliery  Co.,  87  L.  T.  661,  5  W.  C.  C.  117 229,  245 

V.  Powell  Duftryn  Steam  Coal  Co.,  4  W.  C.  C.  A.  17 551 

V.  Thomas,  1  W.  C.  C.  A.  9,  C.  A 407 

V.  Thomas,  4  W.  C.  C.  A.  9 416 

Reese  v.  Yale  &  Towne  Mfg.  Co.,  1  Conn.  Comp.  Dec.  154 349,  447,  700,  749 

Reeves,  In  re,  Op.  Sol.  Dept.  of  L.  73 188 

Refuge  Assur.  Co.  v.  Millar,  5  W.  B.  C.  C.  522,  Ct.  of  Sess 414,  752 

Reger  v.  McCloud  River  Lumber  Co.,  1  Cal.  I.  A.  G.  Dec.  567 588 

Reich  V.  Imperial,  1  Cal.  I.  A.  C.  Dec.  337 294,  503 

Reid  V.  State  of  Colorado,  187  U.  S.  137,  23  Sup.  Ct.  92,  47  L.  Ed.  108 45 

V.  Thomas  Elevator  Co.,  Bulletin  No.  1,  111.  p.  144 299 

Reimers  v.  Proctor  Pub.  Co.,  85  N.  J.  Law,  441,  89  Atl.  931,  4  N.  C.  C.  A. 

738 310,  392,  464,  467 

Reinburg,  In  re.  Op.  Sol.  Dept.  of  L.  398 572 

Reis  v.  Standard  Portland  Cement  Co.,  2  Cal.  I.  A.  C.  Dec.  869 261 

Reisinger,  In  re.  Op.  Sol.  Dept.  of  L.  161 345 

Reithel,  In  re,  222  Mass.  163,  109  N.  E.  951,  L.  R.  A.  1916A,  304,  11  N.  C. 

C.    A.    2.35 351,  437 

Remsnider  v.  Union  Savings  &  Trust  Co.,  89  Wash.  87,  154  Pac.  135 330 

Remlow  v.  Moon  Lake  Ice  Co.  (Mich.)  158  N.  W.  1027 823 

Renfrew  v.  McCraw,  Limited,  7  B.  W.  C.  C.  898 401 

Rennie  v.  Reid,  1  B.  W.  C.  C.  324,  Ct.  of  Sess 191,  200 

Renwick,  In  re,  Op.  Sol.  Dept.  of  L.  172 345 

Replogle  V.  Seattle  School  Dist.  No.  1,  84  Wash.  581,  147  Pac.  196 340,737 

Report  of  Nevada  Industrial  Commission  will  be  found  in  this  table  under 
"Nevada." 

Reseberg  v.  Hamilton  Mfg.  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  14 703 

Ress  V.  Youngstown  Sheet  &  Tube  Co.,  Vol.  1,  No.  7,  Bui.  Ohio  Indus. 

Com.   p.   194 236,  290 

Revere  Rubber  Co.,  In  re,  222  Mass.  461,  111  N.  E.  166 584 

Revie  v.  Cumming,  5  B.  W.  C.  C.  483,  Ct.  of  Sess 454,  455 

Revita  v.  Royal  Indemnity  Co.,  2  Mass.  Wk.  Comp.  Cases,  352 671 

Reynolds  v.  Mound  City  Water  &  Light  Co.,  Bulletin  No.  1,  111.  p.  123 

390,  571 

V.  Smith,  1  Cal.  I.  A.  C.  Dec.  35 575 

Rheinwald,  In  re,  168  App.  Div.  425,  153  N.  Y.  Supp.  598 

5,  9,  15,  16,  26,  170,  171,  172,  175,  199,  220,  330,  829 

Rhyner  v.  Hueber  Bldg.  Co.,  171  App.  Div.  56,  156  N.  Y.  Supp.  903 

233,  234,  823,  825,  827 
Richards  v.  Travelers'  Ins.  Co.,  89  Cal.  170,  26  Pac.  762,  23  Am.  St.  Rep. 

455  278 

Richardson  v.  Builders'  Exch.  Ass'n,  The  Bulletin,  N.  Y.,  Vol.  1,  No.  10, 

P-    18 495,  755 

V.  Denton  Colliery  Co.,  6  B.  W.  C.  C.  629,  C.  A 394 


951  CASES    CITED  Rogers 

Page 
Richardson  v.  Morris,  7  B.  W.  C.  C.  130.  C.  A 377 

V.  Sears,  Roebuck  &  Co.,  271  111.  32.5,  111  N.  E.  85 61 

V.  Avoumore,  The,  5  B.  W.  C.  C.  34,  C.  A 349,  471 

Richerson,  In  re.  Op.  Sol.  Dept.  of  L.  775 649 

Ridler  v.  Little  Co.,  Op.  Mich.  Indus.  Aec.  Bd.  Bui.  No.  3,  p.  27 169,  635 

Rideout  Co.  v.  Pillsbury  (Cal.)  159  Pac.  4.35 311,  355,  509,  554,  7TS,  S24 

Rieff  V.  Sacramento,  2  Cal.  A.  I.  C.  Dec.  223 3S1,  412 

Riggs,  In  re,  Op.  Sol.  Dept.  of  L.  155 344 

Riley  v.  Holland  &  Sons,  4  B.  W.  C.  C.  155,  C.  A 350,  3G3 

V.  Walsh,  1  Conn.  Comp.  Dec.  505 655 

Rintoul  V.  Dalmeny  Oil  Co.,  1  W.  B.  C.  340 229 

Ripley,  In  re.  Op.  Sol.  Dept.  of  L.  110 187 

Risdale  v.  Kilmarnock,  The,  8  B.  W.  C.  C.  7,  C.  A 405 

Rist  V.  Larkin  &  Sangster,  171  App.  Div.  71,  156  N.  Y.  Supp.  875.  .300,  408,  414 

Ritchings  v.  Bryant,  6  B.  W.  C.  C.  183,  C.  A 200 

Rives  V.  Smith,  2  Cal.  I.  A.  C.  Dec.  972 798 

Roadhouse  v.  Wells,  2  Cal.  I.  A.  C.  251 206 

Robbins  v.  Original  Gas  Engine  Co.  (Mich.)  157  N.  W.  437 

275,  276,  279,  280,  295,587 

Roberts,  In  re,  Op.  Sol.  Dept.  of  L.  127 342 

V.  Charles  Wolf  Packing  Co.,  95  Kan.  723,  728,  149  Pac.  413 653,  761 

V.  Trollop  &  Sons  &  Colls,  7  B.  W.  C.  C.  679,  C.  A 399 

V.  Whaley  (Mich.)  158  N.  W.  209 220,  241 

Robertson  v.  Allan  Bros.  &  Co.,  1  B.  W.  C.  C.  172,  C.  A 451 

V.  Hall  Bros.  S.  S.  Co.,  3  B.  W.  C.  C.  368,  C.  A 245 

Robinson,  In  re.  Op.  Sol.  Dept.  of  L.  386 647 

In  re.  Op.  Sol.  Dept.  of  L.  389 573 

V.  Durfy,  2  Cal.  I.  A.  C.  Dec.  1060 143 

Robison  v.  Newark  Reflector  Co.,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com. 

p.    167 215,  693 

Robitson  v.  Panama  Fruit  Co.,  1  Cal.  I.  A.  C.  Dec.  385 693 

Robson  V.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  235,  C.  A 598 

Robson,  Eckford  &  Co.  v.  Blakey,  5  B.  W.  C.  C.  536,  Ct.  of  Sess. 4.32 

Rocca  V.  Stanley  Jones  &  Co.,  7  B.  W.  C.  C.  101,  C.  A 519 

Rock,  In  re.  Op.  Sol.  Dept.  of  L.  573 249.  256 

Rockwell,  In  re.  Op.  Sol.  Dept.  of  L.  307 387 

V.  Lewis,  168  App.  Div.  674,  154  N.  Y.  Sup.  893 630 

Rodger  v.  Paisley  School  Board,  5  B.  W.  C.  C.  547,  Ct.  of  Sess 4.",2 

Rodriguez,  In  re,  Op.  Sol.  Dept.  of  L.  227 292 

In  re.  Op.  Sol.  Dept.  of  L.  551 769 

Roesch  V.  Reo  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  486 501 

Roger  V.  School  Board  (1912)  S.  C.  583 429 

Rogers  v.  Cardiff  Corporations,  8  W.  O.  C.  51 28 


Bokos  CASES   CITED  953 

Page 

Rokos  V.  Glares  &  Papas,  2  Cal.  I.  A.  C.  Dec.  993 803 

Roles  V.  Pascall  &  Son,  4  B.  W.  C.  C.  148,  C.  A 754 

Roll,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  63 353 

Rollins,  In  re.  Op.  Sol.  Dept.  of  L.  153 343 

Rollnik  V.  Lankershim,  1  Cal.  I.  A.  C.  Dec.  45 293,  791 

Rolph  V.  Morgan,  2  Cal.  I.  A.  C.  Dec.  543 494 

Roman  v.  American  Steel  &  Wire  Co.,  1  Conn.  Comp.  Dec.  566 510 

Rongo  V.  R.  Waddington  &  Sons,  87  N.  J.  Law,  395,  94  Atl.  408,  9  N.  C. 

C.   A.   402 122 

Roos  V.  State,  6  Minn.  428  (Gil.  291) 63 

Roper  V.  Greenwood,  S3  L.  T.  471 288 

Rose  V.  Los  Angeles.  2  Cal.  I.  A.  C.  Dec.  574 461,  495 

V.  Morrison  &  Mason,  4  B.  W.  C.  C.  277.  C.  A 455 

V.  North  Pac.  S.  S.  Co.,  2  Cal.  I.  A.  C.  Dec.  57 348,  553 

V.  Pickrell,  1  Cal.  I.  A.  C.  Dec.  85 , 210,  219 

Rosenberg  v.  Western  Mercantile  Co.,  2  Cal.  I.  A.  C.  Dec.  673 217 

Rosenquist  v.  Bowring  &  Co.,  1  B.  W.  C.  C.  395,  C.  A 576 

V.  Bowring  &  Co.,  2  Cal.  I.  A.  C.  Dec.  G73 174 

Ross  V.  Aberthaw  Const.  Co.,  1  Conn.  Comp.  Dec.  533 718 

V.  Casualty  Co.  of  America,  2  Mass.  Wk.  Comp.  Cases.  663 448 

V.  Erickson  Const.  Co.,  89  Wash.  634,  155  Pac.  153 13,  20,  520,  732,  736 

Rossi  V.  Standard  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  307 243,  261,  269,  687 

Rossow  V.  Denvir,  Bulletin  No.  1,  111.,  p.  141 801 

Rothwell  V.  Davies,  5  B.  W.  C.  C.  141,  C.  A , 528 

Rouda  &  Spivock  v.  Heenan,  3  Cal.  I.  A.  C.  Dec.  36 309 

Rouner  v.  Columbia  Steel  Co.,  2  Cal.  I.  A.  C.  Dec.  207 621 

Rounsaville  v.  Central  R.  Co.,  87  N.  J.  Law,  371,  94  Atl.  392.... 34,  41,  48,  49, 

92,  99,  101 

Rowland  v.  Wright,  1  B.  W.  C.  C.  192,  C.  A , 381,  426 

Ruabon  Coal  Co.  v.  Thomas,  3  B.  W.  C.  C.  32,  C.  A 528 

Rudder  v.  Ocean  Shore  R.  Co.,  1  Cal.  I.  A.  C.  Dec.  209. . .  .283,  352,  438,  590,  796 

Rugan,  In  re.  Op.  Sol.  Dept.  of  L.  2S5 3G5 

Rulings  of  Washington  Industrial  Accident  Insurance  Commission,  will 
be  found  in  this  table  under  "Washington,  Rulings  of  Industrial  Acci- 
dent Insurance  Commission." 

Rumboll  V.  Nunnery  Colliery  Co.,  80  L.  T.  42,  1  W.  C.  C.  28 823 

V.  Nunnery  Colliery  Co.,  1  W.  C.  C.  29,  C.  A 559 

Ruprecht  v.  Dominguez  Land  Corp.,  3  Cal.  I.  A.  C.  Dec.  5 193 

V.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  864.  .  .550,  567,  568,  587,  694 

Ruth  V.  Witherspoon-Engler  Co.,  98  Kan.  179,  157  Pac.  403 504,  519,  774 

Ryalls  V.  Mechanics  Mills,  150  Mass.  190,  22  N.  E.  766,  5  L.  R.  A.  677 29 

Ryan  v.  California  Baking  Co.,  2  Cal.  I.  A.  C.  Dec.  190 516 

V.  Griswold  &  Davis,  1  Conn.  Comp.  Dec.  510 804 


953  CASES   CITED  Scliaeffer 

Page 
Kyan  v.  Hartly,  5  B.  W.  C.  C.  407,  C.  A T26 

V.  Metropolitan  Chair  Co.,  1  Coim.  Comp.  Dec.  37 174 

T.  Tipperary  County  Council,  5  B.  W.  C.  C.  578,  C.  A 212 

s 

Saari  v.  Pacific  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  182 451,  452,  45:5 

Sabella  v.   Brazileiro,  86  N.   J.   Law,   505,   91  Atl.   1032,   6  N.   C.   C.   A. 

958  201,  203 

V.  Brazileiro,  87  N.  J.  Law,  710,  94  Atl.  1103 201 

Sabre's  Case,  86  Vt.  347,  85  Atl.  695,  Ann.  Cas.  19150,  1269 72 

Saccoccio  v.  Bradley  Contracting  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  5, 

p.    11 5^>' 

Sadowski  v.  Thomas  Furnace  Co.,  157  Wis.  443,  146  N.  W.  770 25 

St.  John  V.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  376 400 

St.  Louis,  I.  M.  &  S.  R.  Co.  v.  Commercial  Union  Ins.  Co.,  139  U.  S.  223, 

235,  11  Sup.  Ct.  554,  557,  35  L.  Ed.  154 164 

Sala  V.  Martorella  &  Gianuesi,  The  Bulletin,  N.  T.  Vol.  1,  No.  6,  p.  11 124 

Salem  Hospital  v.  Olcott,  67  Or.  448,  136  Pac.  341,  4  N.  C.  C.  A.  614 696 

Salus  V.  Great  Northern  R.  Co.,  157  \\"Ls.  546,  147  N.  W.  1070.  .100,  112,  114,  284 
Salvatore  v.  Andreani  &  Gelormino,  1  Conn.  Comp.  Dec.  169 254,  260,  789 

V.  New  England  Casualty  Co.,  2  Cal.  I.  A.  C.  Dec.  355. .  .517,  520,  792,  810 

Sampo  V.  Yellow  Aster  Min.  &  MiU.  Co.,  2  Cal.  I.  A.  C.  Dec.  539 613 

Sams  V.  Komas  &  Dorros,  2  Cal.  I.  A.  C.  Dec.  285 702 

Sandberg  v.  Kruse,  1  Cal.  I.  A.  C.  Dec.  441 39,  40,  41 

V.  San  Pedro,  Los  Angeles  &  Salt  Luke  R.  R.  Co.,  2  Cal.  I.  A.  C.  Dec. 

694    53 

Sanders,  In  re.  Op.  Sol.  Dept.  of  L.  114 , 187 

Sanderson  v.  Parkinson  &  Sons,  6  B.  W.  C.  C.  648,  C.  A 752 

V.  Wright,  7  B.  W.  C.  C.  141,  C.  A 391 

Sanderson's  Case,  In  re  (Mass.)  113  N.  E.  355 378,  420,  796,  824 

Sanford  v.  Connecticut  Co.,  1  Conn.   Comp.  Dec.  485 561 

San  Francisco  Stevedoring  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  29S,  170 

Cal.  321,  149  Pac.  580,  9  N.  C.  C.  A.  37 741 

Sargent,  In  re,  Op.  Sol.  Dept.  of  L.  275 •  - 292 

Saudek  v.  Milwaul  ee  Electric  Ry.  &  Light  Co.   (Wis.)  157  N.  W.  579 155 

Saunders  v.  Oxnard  Home  Telephone,  1  Cal.  L  A.  C.  Dec.  630 586,  SOS 

Savage,  In  re,  222  Mass.  205,  110  N.  E.  283 464,  465 

Sayers  v.  Girard,  1  Cal.  I.  A.  C.  Dec.  352 ISO.  209 

Sayles  v.  Foley  (R.  I.)  96  Atl.  340 58,  60,  64,  65,  QG,  07,  69,  85,  88 

Scales  V.  West  Norfolk  Farmers'  Manure  &  Chemical  Co.,  6  B.  W.  C.  C. 

188,  C.  A 308 

Scanlan,  In  re,  Op.  Sol.  Dept.  of  L.  724 464 

Srh;^."^'"er  v.  De  Grottola,  85  N.  .T.   Law,  444,  89  Atl.  921,  4  N.  C.  C.    V. 
582    201,  585 


Sehatz  CASES   CITED  954 

Page 

Schatz,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  60 254,  369 

Schebrosky  v.  Morrison  &  O'Neil,  1  Cal.  I.  A.  C.  Dec.  401 664,  809 

Schlechter,  In  re,  Op.  Sol.  Dept.  of  L.  331 403 

Schlegal  v.  Frankfort  General  Ins.  Co.,  2  Cal.  I.  A.  C.  Dec.  491 714 

Schlosser,  In  re,  Op.  Sol.  Dept.  of  L.  133 342 

Schmidt  v.  Menominee  Bay  Shore  Lumber  Co.,  Rep.  "Uls.  Indus.   Com. 

1914-15,  p.  22 , 806 

V.  O.  K.  Baking  Co.,  1  Conn.  Comp.  Dec.  683 305,  804 

V.  O.  K.  Baking  Co.,  90  Conn.  217,  96  Atl.  963 30,  751,  754 

V.  William   Pfeifer   Berlin   Weiss   Beer    Brewing    Co.,    Bulletin    No. 

1,    111.,    p.   118 137 

Schmitt,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com,  p.  81 379 

Schmitz  V.  Appleton,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  31 177 

Schmoll  V.  Weisbrod  &  Hess  Brewing  Co.  (N.  J.  Sup.)  97  Atl.  723 439,  458, 

505,  815 

Schoenreiter  v.  Quincy  Mining  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  2 674 

Schofield  V.  Orrell  Colliery  Co.,  2  B.  W.  C.  C.  294,  H.  L.,  301  C.  A 242 

Schoonmaker  v.  Gilmore,  102  U.  S.  118,  26  L.  Ed.  95 44 

Schrewe  v.  New  York  Cent.  R.  R.  Co.  (Mich.)  158  N.  W.  337 819 

Schroeb,  Earl  W,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  1.32 364 

Schultz  V.  Pacific  Electric  R.  Co.,  2  Cal.  I.  A,  C.  Dec.  709 791 

Schuman  v.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk.  Comp.  Cases, 

599  118 

Schwab  V.  Emporium  Forestry  Co.,  167  App.  Div.  614,  153  N.  T.  Supp. 

234    620 

Schwanz  v.  Wujek,  163  Mich.  492,  128  N.  W.  731 229 

Schwartz  v.  India  Rubber,  Gutta  Percha  &  Telegraph  Works  Co.,  5  B.  W. 
C.  C.  390,  2  K.  B.  299  (1912)  W.  M.  98,  28  T.  L.  R.  331,  81  L.  J.  K.  B. 

N.  S.  780  (1912)   W.  C.  R.  E.  P.  190,  106  L.  T.  N.  S.  706 32 

Schweitzer  v.  Hamburgh  American  Line,  149  App.  Div.  900,  134  N.  Y. 

Supp.    812 33 

V.  Hamburg   American   Line,    78   Misc.    Rep.   448,   138   N.   Y.    Supp. 

944    33,     37 

Schwenlein,  In  re.  Vol.  1,  No.  7,  Bui.  Indus.  Com.  p.  136 353 

Scott,  In  re.  Op.  Sol.  Dept.  of  L.  595 249 

V.  ^tna  life  Ins.  Co.,  1  Cal.  I.  A.  C.  Dec.  343 0S9,  690,  692,  695,  705 

V.  Payne  Bros.,  85  N.  J.  Law,  446,  89  Atl.  927,  4  N.  C.  C.  A.  682.  . .  .92,  104, 

175,  201,  325,  347,  393,  397,  415,  437,  839 

V.  Wihat  Cheer  Coal  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  1 282 

Sczerbowicz  v.  New  Britain,  1  Conn.  Comp.  Dec.  671 527 

Seaboard  Air  Line  R.  Co.  v.  Florida,  203  U.  S.  261,  27  Sup.  Ct.  109,  51 

L.  Ed.  175 780 

V.  Horton,  233  U.  S.  501,  34  Sup.  Ct.  638,  58  L.  Ed.  1068,  L.  R.  A. 

1915C,  1,  Ann.  Cas.  1915B,  475,  8  N.  C.  C.  A.  834 52 


955  CASES   CITED  Sheppard 

Page 

Searles  T.  Connecticut  Co.,  1  Conn.  Comp.  Dec.  97 702,  822 

Sebestini  v.  Fred  T.  Ley  &  Co.,  1  Conn.  Comp.  Dec,  5G9 531 

Sedlock  V.  Carr  Coal  Min.  &  Mfg.  Co.,  98  Kan.  680,  159  Pac.  9 3G9,  452 

Sefton  V,  Midway  Driller  Pub.  Co.,  2  Cal.  I.  A.  C.  Dec.  987 498 

Seiberlich  v.  Buckingham  &  Hecht,  1  Cal.  I.  A.  C.  Dec.  372 310 

Sellos,  In  re.  Op.  Sol.  Dept.  of  L.  387 595 

Selsus  V.  J.  I.  Case  Threshing  Mach.  Co.,  Eep.  Wis.  Indus.  Com.  1914-15, 

p.  22 104 

Semi  V.  Rolandi,  1  Cal.  I.  A.  C.  Dec.  184 582 

Senter  v.  Klyce,  2  Cal.  I.  A,  C.  Dec.  704 484 

Septimo,  In  re,  219  Mass.  430,  107  N.  E.  63,  7  N.  C.  C.  A  906.  .607,  618,  822,  830 
Sexton  V.  Massachusetts  Bonding  &  Insurance  Co.,  1  Cal.  I.  A.  C.  Dec.  48 

241,  244,  253 
V.  Newark  Dist.  Tel.  Co.,  84  N.  J.  Law,  85,  86  Atl.  451,  3  N.  C.  C.  A. 

569,  affirmed  86  N.  J.  Law,  701,  91  Atl.  1070 21,  31,  66,  67,  86,  88, 

91,  92,  95,  108,  571 
Shade  v.  Ash  Grove  Lime  &  Portland  Cement  Co.,  92  Kan.  146,  139  Pac. 

1193,  Ann.  Rep.  Kan.  B.  of  L.  1913,  p.  184,  5  N.  C.  C.  A.  763. .  .101,  730 
V.  Ash  Grove  Lime  &  Portland  Cement  Co.,  93  Kan.  257,  144  Pac. 

249 11,  64,  65,  66,  67,  73,  83,  90,  99 

Shafer  v.  Parke,  Davis  &  Co.,  Mich.  Wk.  Comp.  Cases  (1916)  7 195,748 

Shafeer,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  7 228,  246,  252,  790 

V.  Southern  California  Hardwood  Mfg.  Co.,  2  Cal.  I.  A.  C.  Dec.  891..  218 
Shanahan  v.  Monarch  Engineering  Co.,  92  Misc.  Rep.  466,  156  N.  T.  Supp. 

143  738 

Shannessy  v.  Chicago,  Bulletin  No.  1,  111.,  p.  160 589 

Shapiro  v.  New  Haven  Carriage  Co.,  1  Conn.  Comp.  Dec.  508 718 

Sharman  v.  Holliday  &  Greenwood,  6  B.  W.  C.  C.  147,  C.  A 676 

Sharp  V.  Johnson  &  Co.,  7  W.  C.  C.  28,  30,  C.  A 360 

Shaw  V.  Foley,  1  Cal.  I.  A.  C.  Dec.  629 168 

V.  Massachusetts  Employees'  Ins.  Ass'n,  2  Mass.  Wk.  Comp.  Cashes,  501  715 

V.  Wigan  Coal  &  Iron  Co.,  3  B.  W.  C.  C.  81,  C.  A 435 

Shay  V.  Christian  Feigenspan  C^rp.,  1  Conn.  Comp.  Dec.  232 413 

Shea  V.  United  States  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  481 568 

V.  Western  Grain  &  Sugar  Products  Co.,  2  Cal.  I.  A.  C.  Dec.  550 

270,  312,  470 

Sheehy  v.  Great  Southern  &  W.  R.  Co.,  6  B.  W.  C.  C.  927,  C.  A 381 

Sheeran,  In  re,  28  Op.  Atty.  Gen.  254 542 

Sheerin  v.  F.  &  J.  Clayton  &  Co.,  2  Ir.  R.  110,  C.  A 278,  300 

V.  F.  &  J.  Clayton  &  Co.,  3  B.  W.  C  C.  418 544 

Sheldon  v.  Needham,  7  B.  W.  0.  C.  471,  O.  A 418,  422 

Shepard  v.  Jacobs,  204  Mass.  110,  90  N.  E.  392,  393,  26  L.  R.  A.  (N.  S.) 

442,  134  Am.  St.  Rep.  648 122 

Sheppard,  In  re,  Op.  Sol.  Dept.  of  L.  98 187 


Sheridan  CASES   CITED  95G 

Page 
Sheridan  v.  P.  J.  Grool  Const.  Co.  (N.  Y.)  112  N.  E.  568,  reversing  (Sup.) 

155  N.  Y.  Supp.  859. 331 

Sheriff  V.  Wilson,  3  F.  661,  Ct.  of  Sess 359 

Sherlock  v.  Ailing,  93  U.  S.  99,  23  L.  Ed.  819 45 

Sherwood  v.  Johnson,  5  B.  W.  0.  C.  686,  C.  A 310 

Shetler,  In  re,  Op.  Sol.  Dept.  of  L.  108 186 

Shevchenko  v.  Detroit  United  Ry.  (Mich.)  155  N.  W.  423 105,  827 

Shields  v.  Miller,  2  Cal.  I.  C.  Dec.  1032 478 

Shinuick  v.  Clover  Farms  Co.,  109  App.  Div.  236,  154  N.  Y.  Supp.  423,  9 

N.  C.  C.  A.  342 597,  636,  737,  733 

V.  Clover  Farms  Co.,  90  Misc.  Rep.  1,  152  N.  Y.  Supp.  649 737 

Shipp  v.  Frodingham  Iron  &  Steel  Co.,  6  W.  R.  C.  C.  1,  C.  A 575 

Shirt  V.  Calico  Printers'  Ass'n.,  2  B.  W.  C.  C.  342 518 

Shmidt,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  21 34 

Shouler  v.  Grecnberg,  1  Cal.  I.  A.  C.  Dec.  146 204,  213,  618,  791 

Shushke  v.  Vail  &  Vickers,  2  Cal.  I.  A.  C.  Dee.  182 615 

Sickles  V.  Ballston  Refrigerating  Storage  Co.,  171  App.  Div.  108,  150  N.  Y. 

Supp.    864 334 

Siemientkowski  v.  Berwind  White  Coal  Mining  Co.  (N.  J.)  92  Atl.  909 839 

Sieplenska  v.  New  York  Cent.  R.  R.,  4  N.  Y.  St.  Dep.  Rep.  395 412 

Sigman  v.  Columbia  Oil  Producing  Co.,  3  Cal.  I.  A.  C.  Dec.  2 723 

Silcock  &  Sons  v.  Golightly,  8  B.  W.  C.  C.  48,  C.  A 605 

Sileg  V.  Southern  California  Edison  Co.,  2  Cal.  I.  A.  C.  Dec.  988 479 

Silva  V.  Common,  1  Cal.  I.  A.  C.  Dec.  644 790,  808 

V.  Kopperud,  2  CaL  I.  A.  C.  Dec.  631 155,  158 

V.  Travelers'  Ins.  Co.,  2  Mass.  vna.  Comp.  Cases  597 494 

Silveria  v.  Connecticut  Quarries  Co.,  1  Conn.  Comp.  Dec.  509 594 

Silverman  v.  Zibulsky  Bros.,  The  Bulletin,  N.  Y.  Vol.  1,  No.  6,  p.  13 316 

Simmons  v.  Faulds,  3  W.  C.  C.  169,  C.  A 212 

V.  Heath  Laundry  Co.,  3  B.  W.  C.  C.  200 179 

v.  White  Bros.,  80  L.  T.  344,  1  W.  C.  C.  89 225 

Simonelli  v.  Sargent  &  Co.,  1  Conn.  Comp.  Dec.  553 676 

Simpson,  In  re.  Op.  Sol.  Dept.  of  L.  316 373 

In  re.  Op.  Sol.  Dept.  of  L.  319 387 

In  re,  Op.  Sol.  Dept.  of  L.  675 316 

V.  Paraffine  Paint  Co.,  1  Cal.  I.  A.  C.  Dec.  76 516,  690,  716 

V.  Shepard,  230  U.  S.  352,  33  Sup.  Ct.  729,  57  L.  Ed.  1571,  48  L.  R.  A. 

(N.  S.)  1151,  Ann.  Cas.  191GA,  IS 45 

Sinclair,  Limited  v.  Carlton,  5  B.  W.  C.  C.  937,  Ct.  of  Sess 400 

Sinner  v.  Colchester,  1  Conn.  Comp.  Dec.  286 123 

Sinnes  v.  Daggett,  80  Wash.  673,  142  Pac.  5 612,  613,  616,  624,  818 

Sinsigalli  v.  Suzio,  1  Conn.  Comp.  Dec.  455 486 

Sipe  V.  State,  86  Ohio  St.  80,  87,  99  N.  E.  208,  210 28 

Siri  V.  Arata  &  Co.,  2  Cal.  I.  A.  C.  Dec.  645 454 


"957  CASES   CITED  Smith 

Page 

Sirica  V.  Scovill  Mfg.  Co.,  1  Conn.  Comp.  Dec.  171 519,  5G8,  703 

Sittert,  In  re.  Op.  Sol.  Dept.  of  L.  90 187 

Skailes  v.  Blue  Anchor  Line,  4  B.  W.  C.  C.  16,  C.  A 574 

Skates  v.  Jones  &  Co.,  3  B.  W.  C.  C.  461,  C.  A 127 

Skidmore  v.  Brown,  2  Cal.  I.  A.  C.  Dec.  556 217 

Skill,  In  re.  Op.  Sol.  Dept.  of  L.  157 344 

Skinner  v.  Connecticut  School  for  Imbeciles,  1  Conn.  Comp.  Dec.  lOG.  .171,  182 
V.  Stratton  Fire  Clay  Co.,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  103. . 

110,  124,  390 

Skoczylois  v.  Vincour,  The  Bulletin,  N.  Y.  Vol.  1,  No.  6,  p.  14 143 

Skougstad  v.  Star  Coal  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  31 428,  4.31 

Slade  V.  Taylor,  8  B.  W.  C.  C.  65,  C.  A 419,  423 

Slater  v.  Blyth  Shipbuilding  &  DiT  Docks  Co.,  7  B.  W.  C.  C.  193,  C.  A 677 

y.  New  Britain  Trap  Rock  Co.,  1  Conn.  Comp.  Dec.  501 527 

Slattery  v.  Ocean  Accident  &  Guarantee  Co.,  2  Cal.  I.  A.  C.  Dec.  522 

360,  424,  425 

Slingluff  V.  Weaver,  66  Ohio  St.  621,  64  N.  E.  574 29 

Smale  v.  Wrought  Washer  Mfg.  Co.,  160  Wis.  331,  151  N.  W.  803 730,  733 

Small,  In  re.  Op.  Sol.  Dept.  of  L.  164 344 

V.  Coles,  2  Kings  Bench,  821 28 

Smith,  In  re.  Op.  Sol.  Dept.  of  L.  186 345 

In  re.  Op.  Sol.  Dept.  of  L.  541 ,. 652 

In  re.  Op.  Sol.  Dept.  of  L.  745 648 

In  re.  Op.  Sol.  Dept.  of  L.  759 494 

V.  Atchison,  T.  &  S.  F.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  851 385 

V.  Buxton,  8  B.  W.  C.  C.  196,  C.  A 200 

V.  Christopher's  Market,  2  Cal.  I.  A.  C.  Dec.  536 235 

V.  Cord  Taton  Colliery  Co.,  2  W.  C.  C.  121,  C.  A 530 

V.  Fife  Coal  Co.,  7  B.  W.  C.  C.  253,  H.  L 399,  404 

V.  Forscythe,  1  Conn.  Comp.  Dec.  190 107 

V.  General  Motor  Cab  Co.  (1911)  A.  C.  188,  1  N.  C.  C.  A.  576 179 

V.  Hardman,  Limited,  6  B.  W.  C.  C.  719 778 

V.  Hayashi  Floral  Store,  2  Cal.  I.  A.  C.  Dec.  526 205 

V.  Horlock,  6  B.  W.  C.  C.  638,  C.  A 181 

V.  Industrial  Ace.  Commission  of  California,  2  Cal.  I,  A.  C.  Dec.  439, 

2G  Cal.  App.  560,  147  Pac.  600,  GOl 51,  785,  822,  826,  833 

V.  Israel  Bros.,  Bulletin  No.  1,  111.  p.  164 800,  805 

V.  Lancashire  &  Y.  R.  Co.,  1  W.  C.  C.  1,  C.  A 401 

V.  McPhee  Stevedoring  Co.,  1  Cal.  I.  A.  C.  Dec,  197 461,  490 

V.  Morrison,  5  B.  W,  C.  C.  162,  C.  A 449 

Y.  National  Sash  &  Door  Co.,  96  Kan.  816,  153  Pac.  533 234,  242 

V.  Price,  16S  App.  Div.  421,  153  N.  Y.  Supp.  221 26,  176,  329,  336,  352 

V.  South  Normantown  Colliery  Co.,  5  W.  C.  C.  14,  C.  A 356,  367,  401 

V,  Stanton  Ironworks  Co.  Collieries,  6  B.  C.  C.  239,  C.  A. 474 


Smith 


CASES    CITED 


958 


Smith  V.  Western  States  Portland  Cement  Co.,  94  Kan.  501,  146  Pac.  1026  734 

Smith's  Dock  Co.  v.  Redhead  &  Sons,  5  B.  W.  C.  C.  449 157 

Smolenski  v.  Eastern  Coal  Dock  Co.,  87  N.  J.  Law,  26,  93  Atl.  85,  9  N.  C. 

C.  A.  531 585^  595 

Smrakar  v.  Pacific  Lumber  Co.,  2  Cal.  I.  A.  C.  Dee.  87 514,  680 

Sneddon  v.  Addie  &  Sons'  Collieries,  6  F.  992 246 

V.  Greenfield  Coal  &  Brick  Co.,  3  B.  W.  C.  C.  557,  Ct.  of  Sess 406 

Suell  V.  Bristol  Corporation,  7  B.  W.  C.  C.  236,  C.  A 592 

Snelling  v.  Norton  Hill  Colliery  Co.,  6  B.  W.  C.  C.  506,  C.  A 759 

Snow  V.  Harris,  2  Cal.  I.  A.  C.  Dec.  393 207 

V.  Winkler,  1  Conn.  Comp,  Dec.  76 211 

Snyder  v.  Goodwin,  1  Cal.  I.  A.  C.  Dec.  433 799 

V.  Pacific  Tent  &  Awning  Co.,  3  Cal.  I.  A.  C.  Dec.  1 489,  513,  793 

Socquet  v.  Connecticut  Mills  Co.,  1  Conn.  Comp.  Dec.  653 381,  454 

Soderstrom  v.  Hart- Wood  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  688 553 

Solle  V.  New  York,  N.  H.  &  H.  R.  R.,  4  N.  Y.  St.  Dep.  Rep.  393 448 

Solloway  v.  Kopperud,  2  Cal.  I.  A.  C.  Dec.  187 615 

Soloski  V.  Strickland,  1  Conn,  Comp.  Dec.  564 125 

Sonsmith  v.  Pere  Marquette  R.  Co.  (Sonesmith's  Case)  173  Mich.  57,  73,  138 

N.  W.  347,  356,  360 SO,  81 

Soon  Ring's  Case,  113  U.  S.  703,  5  Sup.  Ct.  731,  28  L.  Ed.  1145 '  83 

Sorensen  v.  Gaff  &  Co.,  6  B.  W.  C.  C.  279,  Ct.  of  Sess 662 

V.  Menasha  Paper  Co.,  56  Wis.  342,  14  N,  W.  446 475 

Sorge  V.  Aldebaran  Co.,  3  N.  Y,  St  Dep.  Rep.  390 412 

Southall  V.  Cheshire  County  News  Co.,  5  B.  W.  O.  C.  251,  C.  A 509 

Southerland  v.  Cowell  Lime  &  Cement  Co.,  2  Cal.  I.  A.  C.  Dec.  994 726 

Southern  California  Hardwood  &  Mfg.  Co.  v.  Adams,  1  Cal.  I.  A.  C.  Dec. 

'iOG  554^  558 

Southern  Pac.  Co.  v.  Pillsbury,  2  Cal.  I.  A.  C.  Dec.  443,  170  Cal.  782,  151 

Pac.  277 51 

Southwestern  Surety  Ins.  Co.  v.  PUlsbury  (Cal.)  158  Pac.  762 

277,  278,  497,  799,  800,  822 

Souza  V.  Stangland  &  Co.,  2  Cal.  I.  A.  C.  Dec.  765 787 

Spangler  v.  Philbin,  2  Cal.  I.  A.  C.  Dec.  158 513,  520 

Speai-s  V.  Santa  Monica,  2  Cal.  I.  A.  C.  Dec.  1016 132 

Speuce  V.  Baird  &  Co.,  5  B.  W.  C.  C.  542 308 

Spencer,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  179 237 

V.  Dowd,  1  Cal.  I.  A.  C.  Dec.  46 464 

V.  Gibson,  1  Cal.  I.  A.  C.  Dec.  565 609 

V.  Seanlon,  1  Conn.  Comp.  Dec.  280 566 

Spiers  v.  Elderslie  S.  S.  Co.,  2  B.  W.  C.  C.  205 124,  128 

Spillane  v.  State  of  Connecticut,  1  Conn.  Comp.  Dec.  505 398 

Sponatski,  In  re  (Sponatski's  Case)  220  Mass.  526,  527,  528,  108  N.  E.  466, 
L.  R.  A.  1916A,  333 270,  326,  471,  483,  505,  508,  779,  822 


959  CASES    CITED  State 

Page 
Spooner  v.  Detroit  Saturday  Night  Co.,  187  Mich.  125,  153  N.  W.  657,  L.  R. 

A.  1916A,  17,  9  N.  C.  C.  A.  647 398,  402,  458,  839 

V.  Estate  of  P.  D.  Beckwith,  183  Mich.  323,  149  N.  W.  971 729,  819,  825 

Spottsville  V.  Western  States  Portland  Cement  Co.,  94  Kan.  258,  146  Pac. 

356 108,  112 

Spratt  V.  Sweeney  &  Gray  Co.,  168  App.  Div.  403,  153  N.  Y.  Supp.  505, 

9  N.  C.  C.  A.  918 9,  26,  34,  38,  141 

Spring  V.  J.  G.  Miller  Co.,  3  Cal.  I.  A.  C.  Dec.  4 710 

Springer,  In  re,  Op.  Sol.  Dept.  of  L.  267 306 

Stachuse  v.  Fidelity  &  Casualty  Co.  of  New  York,  2  Wk.   Comp.  Cas. 

324    617 

Stadtmuller  v.  Travelers'  Ins.  Co.,  The  Bulletin,  N.  Y.,  vol.  1,  No.  4,  p.  9. .   776 

Stagg  V.  Benjamin,  1  Conn.  Comp.  Dec.  405 168 

Staley  v.  Illinois  Cent.  R.  Co.,  268  111.  356,  109  N.  E.  342,  L.  R.  A.  1910A, 

450 51 

V.  Illinois  Cent.  R.  Co.,  186  111.  App.  593 662 

Stampick  v.  American  Steel  &  Wire  Co.,  1  Conn.  Comp.  Dec.  474 495,  778 

Stanland  v.  North  Eastern  Steel  Co.,  2  K.  B.  425,  C.  A 246 

Stanley  v.  F.  R.  Wood  &  W.  H.  Dolson  Co.,  The  Bulletin,  N.  Y.,  vol.  1, 

No.  4,  p.  10 491 

Stanton  v.  Masterson,  2  Cal.  I.  A.  C.  Dec.  707 143,  189 

Stapleton  v.  Dinniugton  Main  Coal  Co.,  5  B.  W.  C.  .C.  602,  C.  A 300,  468 

State  V.  Alderman,  81  N.  J.  Law,  549,  79  Atl.  283 231 

V.  Brown,  97  Minn.  402,  106  N.  W.  477,  5  L.  R.  A.  (N.  S.)  327 82 

V.  Business  Property  Security  Co.,  87  Wash.  627,  152  Pac.  334 340 

V.  Chicago,  M.  &  P.  S.  R.  Co.,  80  Wash.  435,  141  Pac.  897 341 

V.  Clausen,  63  Wash.  535,  416  Pac.  7 82 

T.  Clausen,  65  Wash.  156,  117  Pac.  1101,  37  L.  R.  A.  (N.  S.)  466,  3  N. 

C.  C.  A.  599. .  .7,  8,  10,  11,  19,  27,  58,  59,  62,  64,  65,  67,  68,  81,  82,  89,  95 

V.  Corbett,  57  Minn.  345,  59  N.  W.  317,  24  L.  R.  A.  498 63,  82 

V.  Creamer,  85  Ohio  St.  349,  386,  97  N.  E.  602,  603,  39  L,  R.  A.  (N.  S.) 

694,  1  N.  C.  C.  A.  30 5,  8,  31,  64,  66,  70,  71,  83,  85,  86,  98 

V.  Fisher,  129  Wis.  57,  108  N.  W.  206 827 

V.  Griffin,  69  N.  H.  1,  39  Atl.  260,  41  L.  R.  A.  177,  76  Am.  St.  Rep.  130     65 
V.  Justus,  85  Minn.  279,  88  N.  W.  759,  56  L.  R.  A.  757,  89  Am.  St.  Rep. 

550 82 

V.  Losby,  115  Wis.  57,  90  N.  W.  188 827 

V.  Mountain  Timber  Co.,  75  Wash.  581,  135  Pac.  645,  5  N.  C.  C.  A.  811 

58,  64,  65,  67,  70,  96 

V.  Ohio  Industrial  Commission,  92  Ohio  St.  434,  111  N.  E.  299 

4,  8,  12,  17,  29,  92,  254,  662,  786 

V.  Powers,  38  Ohio  St.  63 80 

V.  Seattle,  73  Wash.  396,  132  Pac.  45 58,  59,  64,  66,  151,  152 

V.  Speyer,  207  Mo.  540,  106  S.  W.  505,  14  L.  R.  A.  (N.  S.)  836 735 


state  CASES   CITED  960 

Page 

State  V.  Standard  Oil  Co.,  Ill  Minn.  85.  126  N.  W.  527 82 

V.  Westfall.  85  Minn.  437,  89  N.  W.  175,  57  L.  R.  A.  297,  89  Am.  St. 

Rep.  571 82 

V.  Willcuts,  143  Wis.  449,  453,  128  N.  W.  97 827 

State  Compensation  Insurance  Fund  v.  Breslow,  1  Cal.  I.  A.  C.  Dec.  194..  260 

V.    Jacobsen,  1  Cal.  I.  A.  C.  Dec.  311 657 

V.  Lemon,  2  Cal.  I,  A.  C.  Dec.  507 363,  424,  786 

State  ex  rel.  Anseth  v.  District  Court  (Minn.)  158  N.  W.  713 

410,  4.36,  681,  712,  837 
Beek  v.  Wagner,  77  Minn.  483,  80  N.  W.  633,  778,  1134,  46  L.  R.  A.  442, 

77  Am.  St.  Rep.  681 82 

Carlson  v.  District  Court,  131  Minn.  96,  154  N.  W.  661,  11  N.  C.  C. 

A.  630 2.58 

Casualty  Co.  of  America  v.  District  Court  (Minn.)  15S  N.  W.  700.. 611,  612 

City  of  Dulutli  V.  District  Court  (Minn.)  158  N.  W.  790,  791 1S3,  663 

City  of  Northfield  v.  District  Court,  131  Minn.  352,  155  N.  W.  103, 

11  N.  C.  C.  A.  366 25,  749 

Coffey  V.  Chittenden,  112  Wis.  569,  88  N.  W.  587 264 

Crookston  Lumber  Co.  v.  District  Court,  131  Minn.  27,  154  N.  W.  509 

239,  251,  642 
Crookston  Lumber  Co.  v.  District  Court  (Minn.)  156  N.  W.  278... 749,  750 
Duluth  Brewing  &  Malting  Co.  v.  District  Court,  129  Minn.  176,  151 

N.  W.  912 17,  25,  321,  326,  397,  429,  445,  447 

Duluth  Diamond  Drilling  Co.  v.  District  Court,  129  Minn.  423,  152 

N.  W.  838,  9  N.  C.  C.  A.  1119 726,  749,  764,  814,  843 

Garvin  v.  District  Court,  129  Minn.  156,  151  N.  W.  810,  8  N.  C.  C.  A. 

1052   28,  621 

Gaylord  Farmer's  Co-op.  Creamery  Ass'n  v.  District  Court,  128  Minn. 

4S6,  151  N.  W.  182,  9  N.  C.  C.  A.  86 578,  637,  642 

Globe  Indemnity  Co.  v.  District  Court  (Minn.)  156  N.  W.  120 

256,  258,  642,  835,  838 

Hayden  v.  District  Court  (Minn.)  158  N.  W.  792 642 

Kennedy  v.  District  Court,  129  Minn.  91,  151  N.  W.  930,  8  N.  C.  C. 

A.  478 630 

Klemer  v.  District  Court  (IMinn.)  158  N.  W.  825 816 

London  &  Lancashire  Guarantee  &  Accident  Co.  of  Canada  v.  District 

Court  (Minn.)  158  N.  W.  515 814 

Maryland  Casualty  Co.  v.  District  Court  (Minn.)  158  N.  W.  798.  .24,  30,  243 
Nelson-Spelliscy  Co.  v.  District  Court,  128  Minn.  221,  150  N.  W.  623 

31,  64,  66,  835,  839 
People's  Coal  &  Ice  Co.  v.  District  Court,  129  Minn.  502,  153  N.  W. 

119,  L.  R.  A.  1916A,  344,  9  N.  C.  C.  A.  129 325,  409,  418,  429 

Splady  V.  District  Court,  128  Minn.  338,  151  N.  W.  123 25,  238 

Varchmin  v.  District  Court  (Minn.)  158  N.  W.  250 242 


y6l  CASES   CITED  Stongliton 

Page 
State  ex  rel.  Virginia  &  Eaiiiy  Lake  Co.  v.  District  Court,  128  Minn.  43, 

150  N.  W.  211,  7  N.  C.  C.  A.  1076 25,  168,  169,  170 

State  Journal  Co.,  In  re,  161  Ky.  562,  170  S.  W.  437,  1166,  L.  R.  A.  1916A, 

389,  Ann.  Cas.  1916B,  1273 , 95,  103 

V.  Workmen's  Compensation  Board,  162  Ky.  387,  172  S.  W.  674,  L.  R. 
A.  1916A,  402,  affirming  161  Ky.  562,  170  S.  W.  1166,  L.  R.  A. 

1916A,  389,  Ann.  Cas.  1916B,  1273 103 

State  Workmen's  Compensation  Commission,   In   re    (Dale   v.    Saunders 
Bros.)    218  N.  Y.  59,  112  N.  E.  571,  affirming  171  App.  Div.  528,  157 

N.  Y.  Supp.  1062 17,  175,  336,  337,  823,  826 

Steel  V.  Cammell,  Laird  &  Co.,  2  K.  B.  p.  238 270 

V.  Cammell,  Laird  &  Co.,  2  K.  B.  p.  232 539 

Steers  v.  Dunnewald,  85  N.  J.  Law,  449,  89  Atl.  1007,  4  N.  C.  C.  A.  676.  .312,  472 

Steiman  v.  Sfard,  2  Cal.  I.  A.  C.  Dec.  1018 177 

Steinat  v.  German  General  Benev.  Soc,  1  Cal.  I.  A.  C.  Dec.  280 502 

Stephens  v.  Clarke,  2  CaL  I.  A.  C.  Dec.  135 522,  768 

Stephenson  v.  Piscataqua  Fire  &  Marine  Ins.  Co.,  54  Me.  55 72 

V.  Rossall  Steam  Fishing  Co.,  8  W.  B.  C.  C.  209,  C.  A 171 

Sterling  v.  Inderredian  Co.,  2  Cal.  I.  A.  C.  Dec.  172 380,  420,  421 

Stertz  V.  Industrial  Insurance  Commission  of  Washington  (Wash.)   158 

Pac.  256 19,  29,  67,  275,  326,  340,  375,  74S 

Stetz  V.  F.  Mayer  Boot  &  Shoe  Co.  (Wis.)  156  N.  W.  971 683 

Stevens  v.  Hillman's  Department  Store,  Bulletin  No.  1,  111.  p.  17 331 

V.  Insoles,  Limited,  5  B.  W.  C.  C.  164,  C.  A 750,  756,  760 

V.  Tattle,  2  Cal.  I.  A.  C.  Dec.  146 217,  808,  834 

Stevenson  v.  Illinois  Watch  Case  Co.,  186  111.  App.  418 257, 63G 

V.  Union  Metallic  Cartridge  Co.,  1  Conn.  Comp.  Dec.  621 398,410 

Stewart  v.  Pacific  Mail  S.  S.  Co.,  2  Cal.  I.  A.  C.  Dec.  583 754 

V.  Wilsons  &  Clyde  Coal  Co.,  5  F.  122,  Ct.  of  Sess 277,  2S1 

Stickley,  In  re,  219  Mass.  513,  107  N.  E.  350 837 

Stinton  v.  Brandon  Gas  Co.,  5  B.  W.  C.  C.  426,  C.  A 750 

Stites  V.  Universal  Film  Mfg.  Co.,  2  Cal.  I.  A.  C.  Dec.  670 219,  554,  589 

Stith,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  67 522 

Stockwell  V.  Waymire,  1  Cal.  I.  A.  C.  Dec.  225 701,  800 

StoU  V.  Ocean  Shore  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  81 765,  792 

V.  Pacific  Coast  S.  S.  Co.  (D.  C.)  205  Fed.  1G9 48,  58,  65,  67 

Stollery  v.  Cicero  &  Proviso  St.  R.  Co.,  243  111.  290,  90  N.  E.  709 774 

Stonaker  v.  Jones  &  Delaney,  2  Cal.  I.  A.  C.  Dec.  834 218 

Stone  V.  Old  Colony  St.  Ry.,  212  Mass.  459-464,  99  N.  E.  218 33 

V.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  715 230 

Stopyra  v.  United  States  Coal  Co.,  decided  August  14,  1914 39J 

V.  United  States  Coal  Co..  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  92. .  555 

Stormont  v.  Bakersfield  Laundry  Co.,  1  Cal.  I.  A.  C.  Dec.  533 518,  664 

Stoughton  Wagon  Co.  v.  Myre  (Wis.)  157  N.  W.  522 628 

HON.COMP. — 61 


Strayer  CASES   CITED  962 

Page 

Strayer,  In  re,  Op.  Sol.  Dept.  of  L.  446 572 

Strom  V.  Postal  Telegraph-Cable  Co.,  271  111.  544,  111  N.  E.  555 85 

Strong,  In  re.  Op.  Sol.  Dept.  of  L.  132 342 

Stronge  v.  Hazlett,  Limited,  3  B.  W.  C.  C.  581,  C.  A 75S 

Stuart  V.  Nixon  &  Bruce,  2  W.  C.  C.  101,  104,  C.  A 119 

Sturbridge  v.  Franklin,  160  Mass.  149,  35  N.  E.  G09 2^3 

Sturdivant  v.  Pillsbury  (Cal.)  158  Pac.  222 788 

Sturgeon,  In  re,  Op.  Sol.  Dept.  of  L.  669 770 

Sudell  V.  Blackburn  Corp.,  3  B.  W.  0.  C.  227,  C.  A 223 

Sugar  V.  Atlas  Taxicab  Co.,  1  Cal.  I.  A.  C.  Dec.  34 555 

Subr  &  Co.  V.  State  Compensation  Ins.  Fund,  2  Cal.  I.  A.  C.  Dec.  725 788 

Sullivan,  In  re,  218  Mass.  141,  105  N.  E.  463,  L.  R.  A.  1916A,  378,  5  N.  C. 

C.  A.  735 25,  599,  600,  601 

,   In  re,  Op.  Sol.  Dept.  of  L.  609 250 

V.  American  Mut.  Liability  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  435, 

C.  A.,  affirmed  218  Mass.  141,  105  N.  E.  463,  L.  R.  A.  1916A,  378. .  600 

V.  Chicago,  M.  &  St.  P.  R.  Co.  (Wis.)  158  N.  W.  321 571 

V.  Industrial  Engineering  Co.  (Sup.)  158  N.  Y.  Supp.  970 512,830 

Summers  v.  National  Tent  &  Awning  Co.,  2  CaL  I.  A.  C.  Dec.  968 570 

Summerville  v.  DeBella  &  Co.,  2  Cal.  I.  A.  C.  Dec.  122 568 

Sundine  v.  London  Guarantee  &  Accident  Co.,  2  Mass.  Wk.  Comp.  Cases, 

833,  affirmed  218  Mass.  1,  105  N.  E.  433,  L.  R.  A.  1916A,  318 370,  453 

Sundine,  In  re  (Sinidine's  Case)  218  Mass.  1,  105  N.  E.  433,  L.  R.  A.  1916A, 

318,  5  N.  C.  C.  A.  616 136,  142,  379,  3S0,  396 

Supreme  Council  v.  Frosinger,  125  Ind.  52,  25  N.  E.  129,  9  L.  R.  A.  501, 

21  Am.  St.  Rep.  196 72 

Susznik  v.  Alger  Logging  Co.,  76  Or.  189,  147  Pac.  922 179 

Sutter,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  147 364 

Sutton  V.  Wurster  Const.  Co.,  2  Cal.  I.  A.  C.  Dec.  705 807 

Swain  v.  Pacific  Telephone  &  Telegraph  Co.,  2  Cal.  I.  A.  C.  Dec.  360 704 

Swank  v.  Chanslor-Canfield  Midway  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  330.  .547,  557 

Swansea  Vale,  The,  v.  Rice,  4  B.  W.  C.  C.  298,  H.  L 462,  471,  746 

Swanson  v.  Sargent  &  Co.,  1  Conn.  Comp.  Dec.  433 622,  647,  650,  714 

Sweeney  v.  Pumpherston  Oil  Co.,  5  F.  972,  Ct.  of  Sess 528 

Swickard  v.  Arrow  Motor  Cartage  Co.,  Bulletin  No,  1,  111.  p.  172 631 

Symmonds  v.  King,  8  B.  W.  C.  C.  189,  C.  A. 423 

Synkus  v.  Big  Muddy  Coal  &  Iron  Co.,  190  111.  App.  602 ..106,  107,  109,111 


Taddei  v.  Schmitz'  Estate,  2  Cal.  I.  A.  C.  Dec.  592 485 

Tallman  v.  Chippewa  Sugar  Co.,  155  Wis.  36,  143  N.  W.  1054 28 

V.  Hart   Const.  Co.,  1  Cal.  I.  A.  C.  Dec.  568 134 

Tarr  v.  Stockton  State  Hospital,  2  Cal.  I.  A.  C.  Dec.  591 517 


963  CASES   CITED  Tindall 

Page 

Tarter  v.  Associated  Oil  Co.,  2  Cal.  I.  A.  C.  Dec.  848 756 

Tatta  V.  Capitol  City  Lumber  Co.,  1  Conn,  Comp.  Dec.  161 674 

Taylor,  In  re,  Op.  Sol.  Dept.  of  L.  411 572 

In  re,  Op.  Sol.  Dept.  of  L.  542 651 

V.  London  &  N.  W.  Ry.  (1912)  A.  C.  242,  245 675 

V.  New  York  Supply  Co.,  1  Conn.  Comp.  Dec,  1S2 177 

V,  Nicholson  &  Son,  8  B.  W.  C.  C.  114,  C.  A 750 

V.  Seabrook,  87  N.  J,  Law,  407,  94  Atl,  399,  11  N,  C.  C.  A,  710 

252,  266,  545,  571.  686,  722 

V.  Spreckels,  2  Cal,  I.  A,  C,  Dec,  62 535,  623,  707,  789 

T,  Sulzberger  &  Sons  Co.,  98  Kan.  169,  157  Pac.  435 232 

Taylorson  v.  Framewellgate  Coal  &  Coke  Co.,  6  B.  W.  C.  C,  56,  C,  A 492 

Telford  v.  Healy-Tibbitts  Const.  Co.,  3  Cal.  I,  A.  C,  Dec.  41 

521,  704,  754,  755,760 

Tennant  v,  Broxburn  Oil  Co,  (1907)  S,  C.  581,  Ct.  of  Sess 546 

V.  Ives,  2  Cal,  L  A,  C,  Dec,  169 708 

V.  Ives,  2  Cal,  I.  A.  C.  Dec.  862 358,  704 

Terlecki  v,  Strauss,  85  N,  J.  Law,  454,  89  Atl,  1023,  4  N,  C,  C.  A,  584, 

affirmed  86  N,  J,  Law,  708,  92  Atl,  1087 324,  361,  365,  458 

Thackway  v,  Connelly  &  Sons,  3  B,  W.  C,  C.  37,  C,  A 308,  473 

Thayer,  In  re,  Op.  Sol.  Dept.  of  L.  266 291 

Thayne  v.  Gray  &  Co,,  8  B.  W,  C,  C.  17,  C,  A 608 

Thennard,  In  re.  Op,  Sol,  Dept,  of  L.  167 344 

Theroux  v.  Shore  Line  Electric  R.  Co,,  1  Conn,  Comp,  Dec,  6G7 480 

Thoburn  v,  Bedlington  Coal  Co,,  5  B.  W,  C,  C.  128,  C.  A 490,  508 

Thomas  v.  Fairbairn,  Lawson  &  Co.,  4  B.  W,  C,  C,  195 676 

Thompson,  In  re.  Op.  Sol.  Dept.  of  L.  165 344 

v.  Employers'  Liability  Assur.  Corp.,  2  Mass.  Wk,  Comp,  Cases,  145.. 

386,  445 

V.  Gould  &  Co,,  2  B,  W.  C.  C,  166,  C,  A 762 

V.  Gould  &  Co.,  3  B.  W.  C.  C,  392,  H.  L 762 

V.  North  Eastern  Marine  Engineering  Co.,  7  B.  W,  C.  C,  49,  C.  A 752 

V.  Thompson,  53  Wis.  153,  10  N.  W.  166 266 

V.  Twiss,  90  Conn.  444,  97  Atl.  328. . .  ,199,  200,  203,  204,  208,  211,  213,  832 
Thompson  &  Sons  v.  North  Eastern  Marine  Engineering  Co,,  5  W,  C,  C,  71  157 
Thomson  v,  Flemington  Coal  Co,,  4  B,  W,  C.  C.  406,  408,  Ct.  of  Sess.. .  .372,  455 

Thorn  v.  Humm  &  Co.,  8  B.  W.  C.  C.  190,  C.  A 434 

Throop  V.  Tangdon,  40  Mich.  673 222 

Tibbs  V.  Watts,  Blake,  Bearne  &  Co.,  2  B.  W.  C.  C.  164,  C.  A 751 

Ticzkus  V.  Standard  Office  Co.,  Bulletin  No.  1,  111.,  p.  176 075 

Tiedman  v.  Chelsea  Fibre  Mills,  The  Bulletin,  N.  Y.,  vol.  1,  No.  10,  p.  16. . .  482 

Tillman  v.  Sperry  Engineering  Co.,  1  Conn.  Comp.  Dec.  408 496 

Tindall  v.  Great  Northern  Steam  Fishing  Co.,  5  B.  W.  C.  C.  607,  C.  A 171 

V.  Great  Northern  Steam  Fishing  Co.,  6  B,  W,  C.  C,  480.  H.  L. 171 


Tiirre  CASES   CITED  9C4 

Page 

Tirre  v.  Bush  Terminal  Co.,  172  App.  Div.  3S6,  158  N.  Y.  Supp.  883 

224,  233,  257,  722,  823,  829 
Tischman  v.  Central  E.  Co.,  84  N.  J.  Law,  527,  87  Atl.  144,  4  N.  C.  C.  A.  736  G43 

Tobin  V.  ^tna  Life  Ins.  Co.,  2  INIass.  Wk.  Comp.  Cases,  612 670 

V.  Hearn,  2  Ir.  R.  639,  C.  A 391 

Todd  V.  Caledonian  R.  Co.,  1  F.  1047,  Ct.  of  Sess 367,  390,  551 

Toennes  v.  Milwaukee  Electric  Ry.  &  Light  Co.,  Rep.  Wis.  Indus.  Com. 

1914-15,   p.   26 314 

Tomalin  v.  Pearson  &  Son,  2  B.  W.  C.  C.  1,  2  K.  B.  61,  7  L.  J.  K.  B.  N.  S. 

S63,  100  L.  T.  N.  S.  685,  25  Times  L.  R.  477 32 

Tomasi  v.  Mazzotti  &  Butini,  2  Cal.  I.  A.  C.  Dec.  936 259 

Tomassi  v,  Christensen,  171  App.  Div.  284,  156  N.  Y.  Supp.  905 ...329,339 

Tombs  V.  Bomford,  5  B.  W.  C.  C.  338,  C.  A 191 

Tomlinson  v.  Garratt's,  Limited,  6  B.  W.  C.  C.  489,  C.  A 400 

Toney  v.  Williams,  1  Cal.  I.  A.  C.  Dec.  348 499,  502 

Tong  V.  Great  Northern  R.  Co.,  4  W.  C.  C.  40,  K.  B.  D 155 

Toole  V.  Robert  D.  Daly  Co.,  1  Conn.  Comp.  Dec.  G51 477 

Topping  V.  Ellis,  2  Cal.  I.  A.  C.  Dec.  382 198,  789 

Towle,  In  re.  Op.  Sol.  Dept.  of  L.  565 254 

Toy  V.  Maryland  Casualty  Co.,  2  Mass.  Wk.  Comp.  Cases,  147 478 

Trahey,  In  re.  Op.  Sol.  Dept.  of  L.  105 187 

Tranimell,  In  re,  Op.  Sol.  Dept.  of  L.  244 307 

Travelers'  Ins.  Co.,  In  re,  223  Mass.  273,  111  N.  E.  792 620 

V.  Hallauer,  131  Wis.  371,  111  N.  W.  527 266,  821 

V.  Spaulding  &  Bros.,  1  Cal.  I.  A.  C.  Dec.  575 354,  693 

Travis  v.  Hobbs,  Wall  &  Co.,  2  Cal.  I.  A.  C.  Dec.  506 213,  218 

Traviso,  In  re,  OlX  Sol.  Dept.  of  L.  161 345 

Traynor  v.  Addie  &  Sons,  4  B.  W.  C.  C.  357,  Ct.  of  Sess 473 

Treadwell  v.  Marks,  3  Cal.  I.  A.  C.  Dec.  3 .417,  436 

Treiber  v.  Weibel  Brewing  Co.,  1  Conn.  Comp.  Dec.  547 727 

Tremblay  v.  Travelers'  Ins.  Co.,  2  Mass.  Wk.  Comp.  Cases,  156 601 

Trenholm  v.  Hough,  1  Cal.  L  A.  C.  Dec.  260 206 

Trim  Joint  District  School  v.  Kelly  (1914)  App.  Cas.  667 11,  437 

V.  Kelly,  6  B.  W.  C.  C.  921,  C.  A 276,  283 

V.  Kelly,  7  B.  W.  C.  C.  274,  H.  L 276,  283,  417,  434 

Trobitz  v.  Cameron,  1  Cal.  I.  A.  C.  Dec.  550 355 

Trodden  v.  McLennard  &  Sons,  4  B.  W.  C.  C.  190,  C.  A 306 

Troth  V.  Millville  Bottle  Works  (N.  J.)  98  Atl.  435,  affirming  86  N.  J.  Law, 

558,  91  Atl.  1031 62,  66,  103,  750 

Trueblood  v.  Los  Angeles  County,  2  Cal.  I.  A.  C.  Dec.  998 700 

Trumbull  v.  Trumbull  Motor  Car  Co.,  1  Conn.  Comp.  Dec.  304 727 

Tucker,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  86 357 

Turgeon  v.  Fox  Co.,  1  Cal.  I.  A.  C.  Dec.  68 355,  650 

Turley  v.  Bible  Institute  Bldg.  Co.,  1  Cal.  I.  A.  C.  Dec.  472 227 


965  CASES   CITED  Utieres 

Page 

Turnbull  v.  Lambton  Collieries,  Limited,  2  W.  C.  C.  84,  C.  A 129 

V.  Vickers,  Limited,  7  B.  W.  C.  C.  396,  C.  A 700 

Turner,  In  re,  Op.  Sol.  Dept  of  L.  406 573 

V.  Bell  &  Sons,  4  B.  W.  C.  C.  63 828 

V.  Brooks  &  Doxey,  3  B.  W.  C.  C.  22,  C.  A 603 

V.  Miller  &  Richards,  3  B.  W.  C.  C.  305,  C.  A 245 

V.  Oil  Pumping  &  Gasoline  Co.,  2  Cal.  I.  A.  C.  Dec.  496 144,  168,  214 

V.  Port  of  London  Authority,  6  B.  W.  C.  C.  23,  C.  A 584 

V.  Santa  Cruz,  2  Cal.  I.  A.  C.  Dec.  991 303,  618,  651,  668,  766,  794 

Turnquist  v.  Hannon,  219  Mass.  560,  107  N.  E.  443 155,  159,  160,  739 

Tuttle  V.  Embury-Martin  Lumber  Co.  (Mich.)  158  N.  W.  875 118,  209,214 

Tutton  V.  Majestic,  The,  100  L.  T.  644,  2  B.  W.  C.  C.  346,  C.  A 526,  528,  529 

Tutton's  Case,  2  K.  B.  54 526 

Twoomey  v.  Royal  Indemnity  Co.,  2  Mass.  Wk.  Comp.  Cases,  540 500 

Tynron,  The,  v.  Morgan,  2  B.  W.  C.  C.  406 675 

V.  Morgan,  2  K.  B.  66 675 

Tyrrell,  In  re.  Op.  Sol.  Dept.  of  L.  546 652 

u 

Udell  V.  Wagner,  Peterson  &  Wilson,  2  Cal.  I.  A.  C.  Dec.  113 60S 

Udey  V.  Winfleld,  97  Kan.  279,  155  Pac.  43 183 

Uhl  V.  Hartwood  Club,  The  Bulletin,  N.  Y.  vol.  1,  No.  11,  p.  11 337 

Underwood  v.  McDuftee,  15  Mich.  361,  93  Am.  Dec.  194 71 

Ungar  v.  Howell,  7  B.  W.  C.  C.  36,  C.  A 758 

Union  Pac.  R.  Co.  v.  U.  S.,  99  U.  S.  700,  25  L.  Ed.  496 63 

United  Collieries  v.  Hendry,  1  B.  W.  C.  C.  289,  Ct.  of  Sess 255 

V.  Hendry,  2  B.  W.  C.  C.  308,  H.  L 255 

T.  McGhie,  6  F.  808,  810 562,  564 

U.  S.  V.  Kie,  Fed.  Cas.  No.  15,52Sb 735 

V.  Maurice,  2  Brock,  96,  102,  103,  Fed.  Cas.  No.  15,747 327 

United  States  Board  &  Paper  Co.  v.  Lander,  47  Ind.  App.  315,  93  N.  E. 

232    168 

United  States  Fidelity  &  Guaranty  Co.  v.  New  York  Rys.  Co.,  93  Misc. 

Rep.  118,  156  N.  Y.  Supp.  615 140,  163,  G86 

V.  Bawling,  1  Cal.  I.  A.  C.  Dec.  64 295 

V.  Rosenbach,  1  Cal.  I.  A.  C.  Dec.  92 713 

United  States  Life  Ins.  Co.  v.  Vocke,  129  111.  557,  22  N.  E.  467,  6  L.  R.  A. 

65    774 

Unodeskia  v.  Scovill  Mfg.  Co.,  1  Conn.  Comp.  Dec.  32 479 

Uphoff  T.  Industrial  Board  of  Illinois,  271  111.  312,  111  N.  E.  12S .339,  827 

Upper  Forest  &  Worcester  Steel  &  Tinplate  Co.  v.  Grey,  3  B.  W.  C.  C.  424, 

C.    A 607 

Upton  V.  Stahlhuth,  2  Cal.  I.  A.  C.  Dec.  539 358 

Utieies  v.  Otto,  2  Cal.  I.  A.  C.  Dec.  652 617 


Valeato  CASES   CITED  966 

V 

Page 
Valente  v.  Fay,  2  Cal.  I.  A.  C.  Dec.  514 364 

Valentine  v.  Smith-Angevine  Co.,  2  N.  Y.  St.  Dep.  Rep.  460,  affirmed  168 

App.  Div.  403,  153  N.  Y.  Supp.  505,  9  N.  C.  C.  A.  918 34 

Vamplew  v.  Parkgate  Iron  &  Steel  Co.,  5  W.  C.  C.  114,  C.  A 214 

Van  Dalsem  v.  Di  Fiore,  1  Cal.  I.  A.  C.  Dec.  229 304 

Van  Lanker  v.  Los  Angeles  County,  1  Cal.  I.  A.  C.  Dec.  107 555,  707 

Van  Sittert,  In  re.  Op.  Sol.  Dept.  of  L.  169 344 

Van  Winkle  v.  Johnson  Co.,  2  Cal.  I,  A.  C.  Dec.  188 465 

Varine  v.  Sargeant,  1  Conn.  Comp.  Dec.  194 173,  381 

Vaughan  v.  Nicoll,  8  F.  464,  Ct.  of  Sess. 549 

Vaughn  v.  American  Coal  Co.,  1  Conn.  Comp.  Dec.  617 25,  697,  698,  719 

Vennen  v.  New  Dells  Lumber  Co.,  161  Wis.  370,  154  N.  W.  640,  L.  R.  A. 

1916A,  273,  10  N.  C.  C.  A.  729 28,  278,  298,  301,  417 

Verderame  v.  Blenner,  1  Conn.  Comp.  Dec.  325 616 

Vereeke  v.  Grand  Rapids,  184  Mich.  474,  151  N.  W.  723 831 

Verkamp,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Comp'.  p.  123 403 

Veseth,  In  re,  Op.  Sol.  Dept.  of  L.  185 345 

Victor  Chemical  Works  v.  Industrial  Board  of  Illinois,  274  111.  11,  113 

N.  E.  173 13,  24,  28,  64,  97,  105,  203,  240,  744,  765, 

774,  795,  822,  826,  828,  837 

Victoria,  The  v.  Barlow,  5  B.  W.  C.  C.  570,  C.  A 181 

Viglione  v.  ]\Iontgomery  Garage  Co.,  2  Cal.  I.  A.  C.  Dec.  87 623,  691 

Viita  V.  Dolan  (Minn.)  155  N.  W.  1077 683 

Villafranca,  In  re.  Op.  Sol.  Dept.  of  L.  676 811 

In  re.  Op.  Sol.  Dept.  of  L.  762 782 

Village  of  Kiel  v.  Industrial  Commission  of  Wisconsin  (Wis.)  158  N.  W. 

68 7,   25,  223 

Village  of  West  Salem  v.  Industrial  Commission,  162  Wis.  57,  155  N.  W. 

929    591 

Villanueva,  In  re.  Op.  Sol.  Dept.  of  L.  765 782 

Vincent  v.  Louis,  2  Cal.  I.  A.  C.  Dec.  130 '. 193 

Vindicator,  etc..  Mining  Co.  v.  Firstbrook,  36  Colo.  498,  86  Fac.  313,  10 

Ann.  Cas.  1108 85 

Viotti  V.  De  Bisschop,  1  Conn.  Comp.  Dec.  195 240,  789 

Visser  v.  Michigan  Cabinet  Co.,  Op.  Mich.  Indus.  Ace.  Bd.,  Bui.  No.  3, 

p.    24    294 

Vitale  V,  Fidelity  &  Deposit  Co.  of  Maryland,  2  Mass.  Wk.  Comp.  Cases 

425    523,    543 

Vittorio  V.  California  Pottery  Co.,  3  Cal.  I.  A.  C.  Dec.  26 442 

Voelz  V.  Industrial  Commission,  161  Wis.  240,  152  N.  W.  830.  .298,  472,  795,  796 
Vogler   V,    M.    Carpenter   Baking   Co.,   Rep.    Wis.    Indus.    Com.    1914-15, 

p.   35     314 


967  CASES   CITED  Walton 

Page 

Vojacek  v.  Schlaefer,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  8 202,  576,  099 

Von  Ette,  In  re,  223  Mass.  56,  111  N.  E.  697 384,  464,  467,  469, 

472,  483,  545,  S22 
Voorhees  v.  Smith   Sclioonmaker  Co.,  86  N.  J.  Law,  500,  92  Atl.  280,  7 

N.  C.  C.  A.  646 304 

Vujic  V.  Youugstown  Sheet  &  Tube  Co.  (D.  C.)  220  Fed.  390 239,  254 

w 

Waddell  v.  Coltness  Iron  Co.,  6  B.  W.  C.  C.  306,  Ct.  of  Sess 560 

Wagner,  In  re,  Op.  Sol.  Dept.  of  L.  666 770 

V.  American  Bridge  Co.  (Sup.)  158  N.  Y.  Supp.  1043 64,  597,  624,  636 

Waites  v.  Franco-British  Exhibition,  Inc.,  2  B.  W.  C.  C.  199,  C.  A.  ..127,  179 

Wajteniak  v.  Pratt  &  Cady  Co.,  1  Conn.  Comp.  Dec.  545 417 

Walde  V.  San  Pedro,  L.  A.  &  S.  L.  R.  Co.,  2  Cal.  I.  A.  C.  Dec.  751 53 

Waldman  v.  Hermann,  1  Cal.  I.  A.  C.  Dec.  S2 505,  513 

Waldock  V.  Winfield,  2  K.  B.  596 122 

Walker,  In  re,  215  N.  Y.  529,  109  N.  E.  604,  Ann.  Cas.  1916B,  87 44 

V.  Clyde  S.  S.  Co.,  215  N.  Y.  529,  109  N.  E.  604,  Ann.  Cas.  1916B,  87. .     44 

V.  Crystal  Palace  Football  Club,  Limited,  3  B.  W.  C.  C.  51,  C.  A 179 

V.  Hockney  Bros.,  2  B.  W.  O.  C.  20,  C.  A 542 

V.  Lilleshall  Coal  Co.,  1  Q  B.  488 276 

V.  Mullius,  1  B.  W.  C.  C.  211,  C.  A 483 

V.  Murrays,  4  B.  W.  C.  C.  409 308 

V.  Santa  Clara  Oil  &  Development  Co..  2  Cal.  I.  A.  C.  Dec.  1.  .120, 143,  786 

Wallace  v.  Glenboig  Union  Fireclay  Co.,  (1907)  S.  C.  967 546 

V.  Pratchner,  2  Cal.  I.  A.  C.  Dec.  661 130,  131 

V.  Regents  of  University  of  California,  1  Cal.  I.  A.  C.  Dec.  97 310,  483 

V.  Tracy  Bros.  Co.,  1  Conn.  Comp.  Dec.  155,  156 610,  624 

Wallack  v.  Sorensen,  1  Conn.  Comp.  Dec.  197 576 

Walsell  V.  Russell  &  Sons,  8  B.  W.  C.  C.  230,  C.  A 757 

Walsh,  In  re.  Op.  Sol.  Dept.  of  L.  231 300 

V.  Hayes,  2  B.  W.  C.  C.  202,  C.  A 127 

V.  Locke  &  Co.,  7  B.  W.  C.  C.  117,  C.  A 527 

V.  New  York  Cent.  &  H.  R.  R.  Co.,  204  N.  Y.  58,  62,  63,  97  N.  E. 

408,  37  L.  R.  A.  (N.  S.)  1137 .' 164,  731 

V.  Waterford  Harbor  Com'rs,  7  B.  W.  C.  C.  960,  C.  A 212 

Walters  v.  Brune,  2  Cal.  I.  A.  C.  Dec.  249 304 

V.  Staveley  Coal  &  Iron  Co.,  105  L.  T.  119,  4  B.  W.  C.  C.  89,  303, 

H.   L 359,   376 

Walther  v.  American  Paper  Co.  (N.  J.  Sup.)  98  Atl.  264 275,  276,  284, 

322,  410,  438 
Walton  V.  South  Kirby,  Featherstone  &  Hensworth  Colliery,  5  B.  W.  C. 

C.   640,    C.   A 676 


"Walton 


CASES    CITED 


968 


Walton  V.  Tredegar  Iron  &  Coal  Co.,  6  B.  W.  C.  C.  592,  C.  A 376, 

AValtzer  v.  Martinez,  2  Cal.  I.  A.  C.  Dec.  951 

Walz  y.  Holbrook,  Cabot  &  Rollins  Corp.,  170  App.  Div.  6,  155  N.  Y. 
Supp.  703 226,  229,  233,  239,  256, 

Wanibold  v.  Fox  Ice  Co.,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  36 

Ward  V.  Miles,  4  B.  W.  C.  C.  182,  C.  A 

Ware,  In  re.  Op.  Sol.  Dept.  of  L.  335 

Warncken  v.  Moreland  &  Son,  100  Law  Times,  12,  2  B.  W.  C.  C.  350, 
355 477^  527, 

Warner  v.  Couchman,  4  B.  W.  C.  C.  32,  C.  A 

V.  Couchman,  5  B.  W.  C.  C.  177,  179,  H.  L 320, 

Warnock  v.  Glasgow  Iron  &  Steel  Co.,  6  F.  474,  Ct.  of  Sess 476, 

Warren  v.  Hedley's  Colliery  Co.,  6  B.  W.  C.  C.  136,  C.  A 

Warton,  In  re,  Op.  Sol.  Dept.  of  L.  315 

Warwick  S.  S.  Co.  v.  Callaghan,  5  B.  W.  C.  C.  2S3,  C.  A 

Washington,  In  re.  Op.  Sol.  Dept.  of  L.  181 

Washington,  Opinion  of  Attorney  General  Sept.  8,  1911 

Sept.   20,   1911 

Dec.  12,  1911 

Jan.   9,  1912 152, 

Feb.  1,  1912 

May   16,    1912 

Sept,  17,  1913 174, 

Washington,    Rulings    of    Industrial    Accident    Insurance    Commission, 

p.  3 328,    436, 

p.  4 340, 

p.  5 39,  117,  164,  239,  242,  245,  435, 

p.  6 241,  264,  271,  438,  673, 

P    7   


.149, 
.147, 


p.  9 

p.  10 

p.  11     

p.  12 55, 

p.  13 140,   148, 

p.  14 20, 

p.  16 149,  153,  173,  242, 

17 


150, 

148, 


P 


581, 


p.  IS 147,   253, 

p.  19 104,  108,  110,  115, 

p.  20 56,   474, 

p.  21 

p.  22   

p.  23 

p.  24   


148, 
149, 
152, 
610, 
626, 
654, 
146, 
609, 
56, 


.55,    152, 


Page 
377 
764 

643 
104 
605 
371 

529 
431 
431 
483 
385 
352 
602 
345 
148 
117 
664 
644 
146 
264 
182 

736 
341 
673 
773 
148 
151 
151 
148 
174 
151 
823 
644 
673 
673 
682 
685 
609 
151 
183 
833 


969  CASES   CITED  Wentworth 

Pago 

Washington,  Rulings  of  Industrial  Accident  Insurance  Commission,  p.  25. .     21 

p.  27    05,    50 

p.  28     21 

Wasilewski  v.  Warner  Sugar  Refining  Co.,  87  Misc.  Rep.  156,  149  N.  Y. 

Supp.  1035   33,  40,  92,  734 

Waters,  In  re,  Op.  Sol.  Dept.  of  L.  110 1S7 

V.  Jewell  Belting  Co.,  1  Conn.  Comp.  Dec.  511 7(31 

V.  Kewanee  Boiler  Co.,  Bulletin  No.  1,  111.,  p.  169 583 

V.  William  J.  Taylor  Co.,  218  N.  Y.  248,  112  N.  E.  727,  atflrming  170 

App.  Div.  942,  154  N.  Y.  Supp.  1149 11,  406,  459 

Watkins,  In  re.  Vol.  1,  No.  7,  Bui,  Ohio  Indus.  Com.  p.  135 387 

V.  Guest,  Keen  &  Nettlefolds,  5  B.  W.  C.  C.  307,  O.  A 547 

Watson,  In  re,  Op.  Sol.  Dept.  of  L.  730,  733 357 

V.  St.  Louis,  I.  M.  &  S.  R.  Co.,  (C.  C.)  169  Fed.  942 65 

Watson  Limited  v.  Brown,  6  B.  W.  C.  C.  416,  Ct.  of  Sess 491 

V.  Brown,  7  B.  W.  C.  C.  259,  H.  L 491 

Watters  v.  Kroehler  Mfg.  Co.,  187  111.  App.  548 632,  636 

Watts  V.  Ohio  Valley  Electric  R.  Co.,  (W.  Va.)  88  S.  E.  659 20,  85,  111,  114 

V.  Watts,  160  Mass.  464,  468,  36  N.  E.  479,  23  L.  R.  A.  187,  39  Am. 

St.    Rep.    509 263 

Wayman  v.  Huff,  1  Cal.  I.  A.  C.  Dec.  358 704,  720 

Weaver  v.  Assawaga  Co.,  1  Conn.  Comp.  Dec.  331 232 

V.  Eyster  &  Stone,  1  Cal.  I.  A.  C.  Dec.  563 218,  347,  521 

V.  Maxwell  Motor  Co.,  186  Mich.  588,  152  N.  W.  993,  L.  R.  A.  1916B, 

1276     28,    621 

Webb,  In  re.  Op.  Sol.  Dept.  of  L.  336 471 

Webber  v.  Wannsborough  Paper  Co.,  3  K.  B.  615 474 

V.  Wansbrough  Taper  Co.,  6  B.  W.  C.  C.  583,  C.  A 451 

V.  Wansbrough  Paper  Co.,  7  B.  W.  C.  C.  795,  H.  L 451 

Weber  v.  American  Silk  Spinning  Co.,  (R.  I.)  95  Atl.  603 578,  579, 

632,  815,  839 

Webster  v.  Cohen  Bros.,  6  B.  W.  C.  C.  92,  C.  A 753 

Weekes  v.  Stead  &  Co.,  7  B.  W.  C.  C.  398,  C.  A 434 

Weighill  V.  South  Henton  Coal  Co.,  4  B.  W.  C.  C.  141,  O.  A.. . . . .  .393,  400,  547 

Weimert  v,  Boston  Elevated  Ry.,  216  Mass.  598,  104  N.  E.  360 309 

Weiser  v.  Industrial  Accident  Commission  of  State  of  California  (Cal.) 

157  Pac.  593 144 

Weissenborn,  In  re.  Op.  Sol.  Dept.  of  L.  388 649 

Wells,  In  re,  Op.  Sol.  Dept.  of  L.  515 651 

Welton  V.  Waterbury  Rolling  Mill,  1  Conn.  Comp.  Dec.  78 37,  173,  797 

Wemyss  Coal  Co.  v.  Symon,  6  B.  W.  C.  C.  298,  Ct.  of  Sess 456 

Wendt  v.  Industrial  Ins.  Commission,  SO  Wash.  Ill,  141  Pac.  311,  5  N.  C 

C.  A.  790 25,  340,  341,  397 

Wentworth  v.  Chamberlain  Co.,  1  Conn.  Comp.  Dec.  588 498 


Wessman  CASES   CITED  970 

Page 

Wessman  v.  Bloomfield,  1  Conn.  Comp.  Dec.  336 710,  715 

West  V.  Pasadena,  1  Cal.  I.  A.  C.  Dec.  274 568 

Western  Grain  &  Sugar  Products  Co.  v,  Pillsbury,  (Cal.)  159  Pac.  423 

470,  778,  779,  827 

Western  Indemnity  Co.  v.  O'Brien,  2  Cal.  I.  A.  C.  Dec.  368 230 

V.  Pillsbury,   2   Cal.   I.   A.  C.   Dec.   454,   170  Cal.  686,   151  Pac.  398, 

10  N.  C.  C.  A.  1 4,  5,  8,  11,  16,  59,  60,  63,  65,  66,  67,  80, 

82,  91,  98,  283,  329,  351,  811,  822,  826,  829 

V.  State  Industrial  Accident  Commission,  158  Pac.  1033 221 

Western  Metal  Supply  Co.  v.  Pillsbury  (Cal.)  156  Pac.  491.  .60,  61,  68,  73,  74, 

118,  127,  224,  283,  284,  585,  785 

Western  Power  Co.  v.  Pillsbury,  170  Cal.  180,  i49  Pac.  35 826 

West  Jersey  Trust  Co.  v.  Philadelphia  &  R.  R.  Co.,  88  N.  J.  Law,  102, 

95  Atl.  753 41,  48,  545,  682 

Wetherell  v.  American  Hardware  Corp.,  1  Conn.  Comp.  Dec.  367 480,  481 

Whalen  v.  United  States  Fidelity  &  Guaranty  Co.,  2  Mass.  Wk.  Comp. 

Cases,  318     543 

Whaley  v.  Hudson,  Bulletin  No.  1,  111.  p.  ISO 348,  447 

Wheadon  v.  Red  River  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  640 489 

Wheatley  v.  Journal  Pub.  Co.,  1  Conn.  Comp.  Dec.  110 389,  446 

V.  Smith,  2  Cal.  I.  A.  C.  Dec.  910 533 

Wheeler  v.  Contoocook  Mills  Corp.,  77  N.  H,  551,  94  Atl.  265 65,  85,  88, 

355,  453,  814 

Wheeler,  Ridley  &  Co.  v.  Dawson,  5  B.  W.  C.  C.  645,  C.  A 528 

Whelan  v.  Great  Northern  Steam  Fishing  Co.,  2  B.  W.  C.  C.  235 172 

V.  Moore,  2  B.  W.  C.  C.  114,  C.  A 455 

Whitbread  v.  Arnold,  99  L.  T,  105,  1  B.  W.  C.  C.  317,  C.  A 376,  378 

White  V.  Fidelity  &  Deposit  Co.  of  Maryland,  2  Mass.  Wk.  Comp.  Cases, 

567    566 

V.  New  York  Cent.  R.  Co.,  2  N.  Y.  St.  Dep.  Rep.  477 46 

V.  Scioto  Land  Co.,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  114 

259,  268,  349 

V.  Sheepwash,  3  B.  W.  C.  C.  382,  C.  A 419,  542 

V.  Wiseman,  5  B.  W.  C.  C.  654,  C.  A 594 

White  &  Sons  v.  Harris,  4  B.  W.  C.  C.  39,  C.  A 605 

Whitehead  v.  Reader,  3  W.  C.  C.  40,  C.  A 391,  393,  561 

Whiteman  v.  Clifden,  6  B.  W.  C.  C.  49,  C.  A 403 

Whitfield  V.  Lambert,  8  B.  W.  C.  C.  91,  C.  A 448 

Whitney  v.  Accident  Ass'n,  52  Minn.  378,  54  N.  W.  184 72 

V.  Peterson,  1  Cal.  I.  A.  C.  Dec.  306 194 

Whitsell  V.  Montgomery,  1  Cal.  I.  A.  C.  Dec.  572 315 

Whitton  v.^  Bell  &  Sime,  1  P.  942,  Ct.  of  Sess 129 

Wicks  V.  Dowell  &  Co.,  7  W.  C.  C.  14,  C.  A 461,  462 

Wiken  v.  Superior  Stevedores  Co.,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  88..  334 


971  CASES    CITED  Witt 

Page 
Wildner  v.  Ferguson,  42  Minn.  112,  43  N.  W.  794,  6  L.  R.  A,  338,  18  Am. 

St.    Rep.    495 18« 

Wilhelm,  In  re,  Op.  Sol.  Dept.  of  L.  508 573 

Wilkinson  v.  Frodingbam  Iron  &  Steel  Co.,  6  B.  W.  C.  C.  200,  C.  A 516 

William  v.  Llandudno  Coaching  &  Carriage  Co.,  8  B.  W.  C.  C.  143,  C.  A. . 

457,  460 

Williams,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  81 228,  238,  589 

V.  Duncan,  The,  7  B.  W.  C.  C.  767,  C.  A 172 

V.  Ocean  Coal  Co.,  9  W.  C.  C.  44,  O.  A 242,  246 

V.  Ruabon  Coal  &  Coke  Co.,  7  B.  W.  C.  C.  202,  C.  A 605 

V.  Smith,  6  B.  W.  C.  C.  102,  C.  A 372 

V.  Vauxhall  Colliery  Co.,  2  K.  B.  433,  436 682 

V.  Vauxhall  Colliery  Co.,  9  W.  C.  C.  120,  C.  A 251 

V.  Wigan  Coal  &  Iron  Co.,  3  B.  W.  C.  C.  65,  C.  A 402 

V.  Williams,  122  Wis.  27,  99  N.  W.  431 266 

Williamson,  In  re,  Op.  Sol.  Dept.  of  L.  750 648 

V.  St.  Catherine's  Hospital,  2  Cal.  I.  A.  C.  Dec.  430 119 

Wilmerson  v.  Lynn  &  Hamburg  S.  S.  Co.,  6  B.  W.  C.  C.  542,  C.  A 126 

Wilmunder  v.  Southern  Pac.  Co.,  2  Cal.  I.  A.  C.  Dec.  1030 54 

Wilson,  In  re.  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  84 494 

V.  American  Co.,  2  Cal.  I.  A.  C.  Dec.  896 755 

V.  C.  A.  Dorflinger  &  Sons,  218  N.  Y.  84,  112  N.  E.  567,  reversing  170 
App.  Div.  119,  155  N.  Y.  Supp.  857,  remittitur  amended  113  N.  E. 

454 333,  338,  339,  844 

V.  Cheney  Bros.,  1  Conn.  Comp.  Dec.  66 413 

V.  Gallegher,  1  Cal.  I.  A.  C.  Dec.  306 654,  656,  657 

V.  Jackson's  Stores,  7  W.  C.  C.  122,  C.  A 606 

V.  Laing,  2  B.  W.  C.  C.  118,  Ct.  of  Sess 443 

V.  Red  River  Lumber  Co.,  2  Cal.  I.  A.  C.  Dec.  807 767 

Winfield  v.  New  York  Cent.  &  H.  R.  R.  Co.,  168  App.  Div.  351,  153  N.  Y. 

Supp.  499 26,  49,   139,   140 

Winn,  In  re,  Op.  Sol.  Dept.  of  L.  389 ^'^ 

V.  Small,  1  Cab  I.  A.  C.  Dec.  5 604 

Winter  v.  Atkinsou-Frizelle  Co.,  88  N.  J.  Law,  401,  96  Atb  360. 839 

V.  Johnson-Pollock  Lumber  Co.,  1  Cal.  I.  A.  C.  Dec.  387 395,  556,  558 

V.  Peter  Doelger  Brewing  Co.,  95  Misc.  Rep.  150,  159  N.  Y.   Supp. 

113    ...., 737,    738 

Winters  v.  Mellen  Lumber  Co.,  Bui.  Wis.  Indus.  Com.  vol.  1,  p.  89 

327,  598,  772,  797 

V.  New  York  Herald,  155  N.  Y.  Supp.  1149 512 

Wisconsin,  Report  Industrial  Commission,  1914-15,  p.  2 12 

Withey  v.  Bloem,  163  Mich.  419,  128  N.  W.  913,  35  L.  R.  A.  (N.  S.)  628..     81 

Withy,  In  re.  Op.  Sol.  Dept.  of  L.  273 299 

Witt  V.  Pacific  Lumber  Co..  2  Cal.  I.  A.  C.  Dec  S61 773 


Wolf  CASES    CITED  972 

Wolf  V.  Scripps,  1  Cal.  I.  A.  C.  Dec.  509 192 

Wolff  V.  Levison  &  Zellerbach,  1  Cal.  I.  A.  C.  Dec.  347 582 

Wood  V,  Camden  Iron  Works  (D.  C.)  221  Fed.  1010 121 

V.  Chico  Const.  Co.,  1  Cal.  I.  A.  C.  Dec.  89 409 

V.  Detroit  (Mich.)  155  N.  W.  592,  L.  R,  A.  1916C,  388 63,  66,  85,  98 

V.  Humphrey,  114  Mass.  185 71 

Woodcock  V.  London  &  N.  W.  R.  Co.,  6  B.  W.  C.  C.  471,  K.  B.  D 155 

V.  Walker,  170  App.  Div.  4,  155  N.  T.  Supp.  702 252,  253 

Wooden  v.  Western  New  York  &  P.  R.  Co.,  126  N.  Y.  10,  26  N.  E.  1050,  13 

L.  R.  A.  458,  22  Am.  St.  Rep.  803 33 

Woodhoiise  v.  Midland  R.  Co.,  7  B.  W.  C.  C.  690,  C.  A 606 

Woodruff  V.  Peterson,  1  Cal.  I.  A.  C.  Dec.  516 197,  514,  571 

Woods  v..  Wilson  &  Sons  Co.,  6  B.  W.  C.  C.  750,  C.  A 482 

V.  Wilson  &  Sons  Co.,  8  B.  W.  C.  C.  288,  H.  L 482 

Woodward  v.  E.  W.  Conklin  &  Sons,  171  App.  Div.  736,  157  N.  Y.  Supp. 

948    683 

Woolsey  v.  Pethick  Bros.,  1  Butterworth,  411 776 

Worden  v.  Commonwealth  Power  Co.,  20  Det.  Leg.  News  No.  39 421 

V.  Commonwealth  Power  Co.,  Mich.  Wk.  Comp.  Cases,  14 423 

Wowinski  v.  Vito,  1  Conn.  Comp.  Dec.  629 208,  211 

Wray  V.  Panama-Pacific  International  Exposition,  3  Cal.  I.  A.  C.  Dec.  6. .  665 

V.  Taylor  Bros.  &  Co.,  6  B.  W.  C.  C.  529,  C.  A 179 

Wright  V.  Bagnall  &  Sons,  2  W.  C.  C.  36,  C.  A 764 

V.  Barnes,  1  Conn.  Comp.  Dec.  248 142,  211,  832 

V.  Kerrigan,  4  B.  W.  C.  C.  432,  C.  A 492,  746 

V.  Lindsay,  5  B.  W.  C.  C.  531.  Ct.  of  Sess 157 

Wrigley  v.  Nasmyth,  Wilson  &  Co.  (Cal.)  159  Pac.  435 311 

V.  Nasmyth,  Wilson  &  Co.,  Workmen's  Compensation  Reports  (Eng- 
land) 1913,  p.  145 , 442 

W.  R.  Rideout  Co.  v.  Pillsbury  (Cal.)  159  Pac.  435 355,  509,  554,  778,  824 

Wygant,  In  re.  Op.  Sol.  Dept.  of  L.  118 342 

Wyrwas  v.  Bigelow-Hartford  Carpet  Co.,  1  Conn.  Comp.  Dec.  326 702 

Y 

Yamasaki  v.  Commonwealth  Bonding  &  Casualty  Ins.  Co.,  1  Cal.  I.  A.  C. 

Dec.    658 844 

Yancey  v.  Los  Angeles  County,  2  Cal.  I.  A.  C.  Dec.  601 223 

Yates  V.  South  Kirby,  Featherstone  &  Hemsworth  Collieries,  3  B.  W.  C.  C. 

418,  C.  A 293,  294,  406,  603 

V.  Union  Ice  Co.,  2  Cal.  I.  A.  C.  Dec.  424 , 754 

Young  V.  Boston  &  M.  R.  Co.,  168  Mass.  219,  46  N.  E.  624 33 

V.  Duncan,  218  Mass.  346,  106  N.  E.  1 6,  26,  90,  98,  102,  103,  731,  785 

V.  Holcomb,  1  Conn.  Comp.  Dec.  482 ;.. .  327 


973  CASES    CITED  Zugg 

Pagfi 

Young  V.  Niddrie  &  Benhar  Coal  Co.,  5  B.  W.  C.  C.  552,  Ct.  of  Sess 229 

V.  ^'iddrie  &  Benhar  Coal  Co.,  6  B.  W.  C.  C.  774,  H.  L 229 

V.  Paris,  2  Cal.  I.  A.  C.  Dec.  518 314 

Younger  v.  Gilro  Mach.  Co.,  2  Cal.  I.  A.  C.  Dec.  90S 123 

Ystradowen  Colliery  Co.  v.  Griffith,  2  K.  B.  533,  C.  A 401,  505,  508 

V.  Griffiths,  2  B.  W.  C.  C.  357,  C.  A 30G 

Yukanovitch  v.  Massachusetts  Employes  Ins.  Ass'n.,  2  Mass.  Wk.  Comp. 

Cases,  787 533 

Yume  V.  Knickerbocker  Portland  Cement  Co.,  3  N.  Y.  St.  Deix  Rep.  353 
affirmed  169  App.  Div.  905,  153  N.  Y.  Supp.  1151 274,  283,  352,  438 

z 

Zabriskie  v.  Erie  R.  Co.,  85  N.  J.  Daw,  157,  88  Atl.  824,  4  N.  C.  C.  A.  778, 

affirmed,  86  N.  J.  Daw,  266,  92  Atl.  385,  D.  R.  A.  1916A,  315 

324,  325,  383,  427,  839 

Zacias,  In  re,  Op.  Sol.  Dept.  of  D.  62 188 

Zappala  v.  Industrial  Ins.  Commission,  82  Wash.  314,  144  Pac.  54,  D.  R. 

A.  1916A,  295 19,  25,  27,  286,  294,  841 

Zarling  v.  North  Side  Coal  Co.,  Bui.  Wis.  Indus.  Com.  1912-13,  p.  29 658 

Zavella  v.  Naughton,  2  Cal.  I.  A.  C.  Dec.  956 493 

Zbinden  v.  Union  Oil  Co.  of  California,  2  Cal.  I.  A.  C.  Dec.  616 362,  370 

Zelavzmi,  In  re,  Vol.  1,  No.  7,  Bui.  Ohio  Indus.  Com.  p.  87 399 

Zilch  V.  Bomgardner,  91  Ohio  St.  205,  110  N.  E.  4.59 739,  740 

Zillwood  V.  Winch,  7  B.  W.  C  C.  60,  C.  A 752 

Zobel  V.  Godlevski,  Rep.  Wis.  Indus.  Com.  1914-15,  p.  12 31,  104.  212 

Zorcic  V.  Adams  Exp.  Co.,  Bulletin  No.  1,  111.,  p.  55 102,  331 

Zugg  V.  J.  &  J.  Cunningham,  Dimited,  1  B.  W.  C.  C.  257,  Ct.  of  Sess 127 


[End  of  VoLtiirE  1] 


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